Chapter 16.15 CRITICAL AREAS*

*Code reviser’s note: The appendices referred to in this chapter are attached to Ordinance No. 269 and may be found on file in the town clerk’s office.

Article I. Introduction

16.15.010 Title.

This chapter shall be known as the critical areas ordinance of the town of Skykomish, Washington. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 1.01.01, 1998)

16.15.020 Purpose and intent.

Much of Skykomish developed at a time when few or no land use regulations existed to guide development. During these earlier times, no scientific studies had been completed to evaluate the impact of development patterns on the functioning and health of the natural environment. Current scientific evidence indicates that many of the development practices of the past had significant negative impacts on the environment (for example, the damage to downstream habitat resulting from development practices that resulted in erosion and increased siltation in streams, or the loss of riparian habitat through the filling of wetlands). The purpose of this chapter is to incorporate current knowledge about protection of the environment into how development in Skykomish is conducted in the future.

(1) This chapter is adopted to designate and classify environmentally sensitive and hazardous areas and to protect these areas and their values which contribute to public health, safety, and welfare without violating any citizen’s constitutional rights. Critical areas of special concern to Skykomish include:

(a) Wetlands;

(b) Geologically hazardous areas such as those subject to landslide and steep slope failures, erosion, seismic events, mine collapse, and volcanic hazards;

(d) Fish and wildlife habitats; and

(e) Flood hazard areas.

(2) The town finds that these critical areas fall into one or both of the following categories:

(a) The critical area provides a variety of valuable and beneficial biological and physical functions that benefit the town and its residents; and

(b) The critical area poses a potential threat to human safety or to public and private property.

(3) By limiting development and alteration of these critical areas, this chapter seeks to:

(a) Protect members of the public and public resources and facilities from injury, loss of life, or property damage due to landslides and steep slope failures, erosion, seismic events, volcanic eruptions, or flooding;

(b) Protect unique, fragile and valuable elements of the environment, including fish and wildlife and their habitats;

(c) Mitigate unavoidable impacts to environmentally sensitive areas by regulating alterations in and adjacent to critical areas;

(d) Prevent cumulative adverse environmental impacts to water quality and wetlands;

(e) Meet the requirements of the Washington Growth Management Act (Chapter 36.70A RCW) with regard to the designation and protection of critical areas, and give special consideration to conservation and protection measures necessary to preserve or enhance anadromous fisheries; and

(f) Coordinate environmental review and permitting of proposals to avoid duplication and delay of desirable actions.

The town shall monitor the application of best management practices to ensure that the standards and policies of this chapter are adhered to. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 1.01.02, 1998)

16.15.030 Legislative authority.

This chapter is adopted under the authority of Chapters 36.70 and 36.70A RCW and Article 11 of the Washington State Constitution. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 1.02.01, 1998)

16.15.040 Interpretation.

In the interpretation and application of this chapter, all provisions shall be:

(1) Considered the minimum necessary;

(2) Liberally construed to serve the purposes of this chapter; and

(3) Deemed neither to limit nor repeal any other powers under state statute. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 1.02.02, 1998)

16.15.050 Relationship to other regulations.

(1) These critical area regulations shall apply as an overlay and in addition to zoning, land use and other regulations established by the town of Skykomish. In the event of any conflict between these regulations and any other regulations of the town, the regulations that provide greater protection to environmentally sensitive areas or greater protection from environmental hazards shall apply.

(2) Regulation of frequently flooded areas as required by Chapter 36.70A RCW and WAC 365-190-080 is provided for through the town of Skykomish flood damage prevention ordinance, Chapter 16.10 SMC.

(3) It is recognized that many town, county, state, and federal permit conditions may be applied to the proposed action, and that compliance with the provisions of this chapter does not constitute compliance with other such requirements.

(4) Satisfaction of the requirements of this chapter shall also be sufficient to satisfy the requirement for critical areas analysis and mitigation pursuant to Chapter 43.21C RCW and the Skykomish SEPA ordinance, Chapter 16.05 SMC. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 1.02.03, 1998)

Article II. Definitions

16.15.060 Definitions.

Unless otherwise provided for in this chapter, all words and phrases shall be interpreted to have their reasonable and customary meanings and usages.

“Aboveground tank” means any one or a combination of tanks (including underground pipes connected thereto) which are used to contain or dispense an accumulation of hazardous substances or hazardous wastes, and the volume of which (including the volume of underground pipes connected thereto) is less than 10 percent beneath the surface of the ground.

“Activity” means any development or land use action, or composite of such actions, which falls under the jurisdiction of this chapter.

“Adit” means a passage in a mine nearly horizontal from the surface.

“Adjacent” means immediately adjoining (in contact with the boundary of the influence area) or within a distance that is less than that needed to separate activities from critical areas to ensure protection of the functions and values of the critical areas. “Adjacent” shall mean any activity or development located a distance equal to or less than the required critical area buffer or management zone width and building setback.

“Administrative official” or “administrator.” As the town’s employee, the town clerk shall administer the processing of this chapter. As such, the town clerk shall ensure that the procedural requirements of this chapter are followed. The clerk shall work with the town mayor, who, as the town’s chief elected official, shall administer the substance of this chapter either by carrying out the duties required of the town as defined herein, or by designating a person or firm to carry out these duties on behalf of the town. The town shall submit the name and qualifications of the designee to the council for approval. The function of the town is to evaluate the material submitted by the applicant and recommend changes to the project plans submitted, as needed, in order to ensure that the applicant complies with the standards adopted in this chapter.

“Alluvial fan” means the fan-like deposit of a stream where it issues from a gorge upon a plain.

“Alteration” means any human-induced activity that changes the existing condition of a critical area. Alterations include, but are not limited to: grading; filling; dredging; draining; channelizing; clearing or removing vegetation; applying herbicides, pesticides or any hazardous substance; discharging pollutants; modifying for surface water management purposes; cutting, pruning or topping, clearing, relocating or removing vegetation; paving; construction; applying gravel; or any other human activity that changes the existing landforms, vegetation, hydrology, wildlife, or wildlife habitat of a critical area. Alterations do not include walking, fishing, or any other passive recreation or other similar activity.

“Anadromous fish” means species, such as salmon, which are born in fresh water, spend a large part of their lives in the sea, and return to freshwater rivers and streams to procreate.

“Applicant” means the person, party, firm, corporation, or other entity that proposes any activity that could affect a critical area.

“Aquifer” means a saturated geologic formation that will yield a sufficient quantity of water to serve as a private or public water supply.

“Artificially created wetland” means any area that meets the criteria for designation as a wetland as a result of intentional or unintentional human actions.

“Authorization” means an action taken by an official of the town or duly appointed representative of that official that ensures the activity is in compliance with the provisions of this chapter.

“Base flood” means a flood having a one percent chance of being equaled or exceeded in any given year; also referred to as the “100-year flood.”

“Best available science” means current scientific information used in the process to designate, protect, or restore critical areas that is derived from a valid scientific process as defined by WAC 365-195-900 through 365-195-925.

“Best management practices (BMPs)” means accepted, state-of-the-art measures for obtaining the highest quality mitigation possible in a given situation. Best management practices include conservation practices or systems of practices and management measures that:

(a) Control soil loss and reduce water quality degradation caused by high concentrations of nutrients, animal waste, toxics, and sediment;

(b) Minimize adverse impacts to surface water and groundwater flow, circulation patterns, and to the chemical, physical, and biological characteristics of wetlands;

(d) Provide standards for proper use of chemical herbicides within critical areas.

“Bog” means a wetland with a limited catchment area and drainage, generally characterized by extensive peat deposits and acidic waters. Vegetation includes sedges, sphagnum moss, shrubs and trees.

“Buffer or buffer area” means a naturally vegetated and undisturbed or revegetated zone surrounding a critical area that protects the critical area from adverse impacts to its integrity and value, or is an integral part of the resource’s ecosystem.

“CAO” means critical areas ordinance.

“Clearing” means the removal of timber, brush, grass, ground cover, or other vegetative matter from a site that exposes the earth’s surface of the site or any actions that disturb the existing ground surface.

“Compensatory mitigation” means the process or action of replacing project-induced wetland losses or impacts including, but not limited to, restoration, creation, and enhancement.

“Condition, to” means to place conditions on the granting of a permit or project approval to ensure compliance with the provisions of this chapter.

“Confined aquifer” means any aquifer bounded above and below by impermeable or relatively impermeable layers.

“Conservation easement” means an agreement between a landowner and a land trust organization whereby the landowner forms a perpetual legal agreement to permanently restrict harmful uses and development of a property. The land stays in private ownership and use, and the land trust sees that the restrictions are carried out. Land trusts are local, regional or statewide nonprofit organizations directly involved in protecting important land resources for the public benefit.

“Contaminant” means any physical, chemical, biological or radiological substance that does not occur naturally in local groundwater at all or in the concentrations indicated.

“Conversion” means any use other than commercial timber operations that is a bona fide conversion to an active use which is incompatible with timber growing; or where the landowner has declared a conversion as part of the forest practice application approved by the Washington State Department of Natural Resources.

“Creation” means, for the purposes of critical areas regulation, an action which creates a new sensitive area in place of a sensitive area which has been altered. Creation is a type of mitigation.

“Critical aquifer recharge areas” means areas where the prevailing geologic conditions allow infiltration rates which create a high potential for contamination of groundwater resources or contribute significantly to the replenishment of groundwater.

“Critical area checklist” means the form completed and filed by the applicant that initiates the initial determination process. The form shall be designed and supplied by the town.

“Critical area designation” means the legal identification and specification for regulatory purposes of critical areas.

“Critical area detailed study” means a thorough investigation of an activity and the critical area(s) it may impact as required by this chapter.

“Critical area review” means the administrative and investigative process for decision making by the town on authorizations required by this chapter. The process begins with the filing of an application for any activity within the jurisdiction of this chapter and concludes with the final determination on authorization. The process may be extended through appeal of the final determination.

“Critical areas” includes wetlands, geologically hazardous areas, fish and wildlife habitat conservation areas, flood hazard areas, and critical aquifer recharge areas as designated in this chapter and required by Chapter 36.70A RCW and WAC 365-190-080.

“Critical facilities” means those facilities occupied by populations or which handle dangerous substances, including, but not limited to: hospitals; medical facilities; structures housing, supporting or containing toxic or explosive substances; covered public assembly structures; school buildings through secondary including day care centers; buildings for colleges or adult education; jails and detention facilities; and all structures with occupancy of greater than 5,000 people.

“Current use property tax assessment” means a method of assessing land based on its current use that is intended to decrease the taxes assessed the property in exchange for the preservation or protection of a natural resource or environmental value, or the retention of the land in a resource capacity. This method usually requires recording the uses (critical area buffer, agricultural use, etc.) with the county assessor’s office.

“DDES” means the King County department of development and environmental services.

“Debris flow” means the rapid downslope movement of a viscous mass of water-saturated regolith.

“Development” means any construction or exterior alteration of structures, dredging, drilling, dumping, filling, earth movement, clearing or removal of vegetation, Class IV general forest practices or Class III forest practices with conversion option harvest plans as defined in Chapter 222-16 WAC, or other site disturbance which either requires a permit, approval or authorization from the town or is proposed by a public agency.

“Development proposal” means any of the activities relating to the use and/or development of land requiring a permit or approval from the town of Skykomish.

“Development review” means all review of a development proposal, from pre-application meetings through the rendering of a final decision pursuant to the provisions of the town of Skykomish development regulations.

“Distance” means the length in feet between two or more points as measured on a horizontal plane.

“Drift” means a nearly horizontal mine passageway driven on or parallel to the course of a vein or rock stratum.

“Earthflow” means any slow downslope movement in which saturated regolith sags downward in a series of irregular terraces.

“Emergent wetland” means a wetland with at least 30 percent of the surface area covered by erect, rooted, herbaceous vegetation as the uppermost vegetative strata.

“Endangered species” means a species, native to the state of Washington, that is designated by the responsible state or federal wildlife agency as endangered.

“Enhancement” means, for the purposes of critical areas regulations, an action which improves the functions or values of a sensitive area or buffer. Enhancement may or may not be mitigation.

“Environmentally sensitive area” means any area whose functions and values are subject to disruption by any regulated activity.

“Epicenter” means the location on the surface of the earth directly above the place where an earthquake originates.

“Erosion” means a process whereby wind, rain, water, and other natural agents mobilize and transport soil particles.

“Erosion hazard areas” are defined as those lands susceptible to the wearing away of their surface by water, wind or gravitational creep.

“Exemption” means release from the liability or requirement of a regulation as a result of meeting the specific identified criteria.

“Existing and ongoing agriculture” means those activities conducted on lands defined in RCW 84.34.020(2), and those existing activities involved in the production of crops or livestock. Activities may include the operation and maintenance of farm and stock ponds or drainage ditches, operation and maintenance of existing ditches or irrigation systems, changes from one type of agricultural activity to another agricultural activity, and normal maintenance, repair, and operation of existing serviceable structures, facilities, or improved areas.

Activities which bring a nonagricultural area into agricultural use are not part of an ongoing operation. An operation ceases to be ongoing when the area on which it is conducted is converted to a nonagricultural use or has lain idle for more than five years.

“Exotic” means any species of plants or animals that are foreign to the planning area.

“Facility” means any structure, contiguous land, appurtenances, and other improvements on the land used for recycling, reusing, reclaiming, transferring, storing, treating, disposing, or otherwise handling a hazardous substance. Use of the term “facility” includes underground and aboveground tanks, and operations which handle, use, dispose of, or store hazardous substances.

“Favorable determination” means the determination by the town that the activity will adequately mitigate its impact upon the critical area(s) and comply with performance standards of this chapter and is authorized.

“Final determination” means the determination by the town of the adequacy of the project, as proposed, to mitigate any effects it may have on critical areas that are included within or adjacent to the project site. In addition, the town will assess the adequacy of the project proposal’s compliance with the applicable performance standards. The determination will be either favorable or unfavorable, indicating that the activity is or is not, respectively, authorized.

“Fish and wildlife habitat conservation” means land management for maintaining populations of species in suitable habitats within their natural geographic distribution so that the habitat available is sufficient to support viable populations over the long term and isolated subpopulations are not created. This does not mean maintaining all individuals of all species at all times, but it does mean not degrading or reducing populations or habitats so that they are no longer viable over the long term. Counties and cities should engage in cooperative planning and coordination to help assure long-term population viability.

“Fish and wildlife habitat conservation areas” are areas that serve a critical role in sustaining needed habitats and species for the functional integrity of the ecosystem, and which, if altered, may reduce the likelihood that the species will persist over the long term. These areas may include, but are not limited to, rare or vulnerable ecological systems, communities, and habitat or habitat elements including seasonal ranges, breeding habitat, winter range, and movement corridors; and areas with high relative population density or species richness. Counties and cities may also designate locally important habitats and species.

Fish and wildlife habitat conservation areas contribute to the state’s biodiversity and occur on both publicly and privately owned lands. Designating these areas is an important part of land use planning for appropriate development densities, urban growth area boundaries, open space corridors, and incentive-based land conservation and stewardship programs.

“Fish habitat” means habitat that is used by fish at any life stage at any time of the year, including potential habitat likely to be used by fish that could be recovered by restoration or management and includes off-channel habitat.

“Flood hazard areas” means those areas subject to inundation by the base flood. These areas consist of the following components, as determined by the town of Skykomish:

(a) “Floodplain” means the total area subject to inundation by the base flood.

(b) “Flood fringe” means that portion of the floodplain outside the floodway which is generally covered by flood waters during the base flood. It is generally associated with standing water rather than rapidly flowing water.

(c) “Floodway” means the channel of the stream and that portion of the adjoining floodplain that is necessary to contain and discharge the base flood flow without increasing the base flood elevation more than one foot.

“Forest practices” means any activity conducted on or directly pertaining to forest land and related to growing, harvesting, or processing timber as described in Chapter 222-16 WAC. This does not include the conversion of forested land to a use incompatible with growing timber.

“Forested wetland” means a regulated wetland with at least 20 percent of the surface area covered by woody vegetation greater than 20 feet in height.

“Frequently flooded areas” means lands in the floodplain subject to a one percent or greater chance of flooding in any given year and designated as Zones A, AE, AH, AO, A99, V, or VE on the official flood insurance rate map for the town of Skykomish, as amended. These areas include, but are not limited to, streams, wetlands and the like.

“Function” means the natural processes performed by a critical area and its components.

“Geologically hazardous areas” means lands or areas characterized by geologic, hydrologic, and topographic conditions that render them susceptible to potentially significant or severe risk of landslides, erosion, volcanic, seismic or other geologic activity, or that are underlain by mines.

“Geologist” means a person who has received a degree in geology from an accredited college or university, or a person who has equivalent educational training and substantial demonstrated experience as a practicing geologist.

“Geotechnical analysis” means an analysis of the geology and related engineering properties as described in this chapter.

“Geotechnical assessment” means an assessment prepared by a professional engineer licensed by the state of Washington with expertise in geotechnical engineering, evaluating the site conditions and mitigating measures necessary to reduce the risks associated with development in geologically hazardous areas.

“Geotechnical report” means a report prepared by a professional engineer licensed by the state of Washington with expertise in geotechnical engineering, evaluating the site conditions and mitigating measures necessary to reduce the risks associated with development in geologically hazardous areas.

“GIS (geographic information system)” means an automated system that combines geographic data with cartographic information and permits mapping and analysis of various combinations of data.

“GMA” means the Washington Growth Management Act, Chapter 36.70A RCW.

“Grading” means any excavating, filling, clearing, leveling, or contouring of the ground surface by human or mechanical means.

“Groundwater” means all water found beneath the ground surface, including slow-moving subsurface water present in aquifers and recharge areas.

“Habitats of local importance” designated as fish and wildlife habitat conservation areas include those areas found to be locally important by counties and cities.

“Hazardous substance(s)” means any liquid, solid, gas or sludge, including any material, substance, product, commodity or waste, regardless of quantity, that exhibits any of the characteristics of hazardous waste, and including waste oil and petroleum products.

“Hazardous substance processing or handling” means the use, storage, manufacture or other land use activity involving hazardous substances, but does not include individually packaged household consumer products or quantities of hazardous substances of less than five gallons in volume per container.

“Hazardous waste” means all dangerous waste and extremely hazardous waste as designated pursuant to Chapter 70.105 RCW and Chapter 173-303 WAC.

(a) “Dangerous waste” means any discarded, useless, unwanted, or abandoned substances including, but not limited to, certain pesticides, or any residues or containers of such substances which are disposed of in such quantity or concentration as to pose a substantial present or potential hazard to human health, wildlife, or the environment because such wastes or constituents or combinations of such wastes:

(i) Have short-lived, toxic properties that may cause death, injury, or illness or have mutagenic, teratogenic, or carcinogenic properties; or

(ii) Are corrosive, explosive or flammable, or may generate pressure through decomposition or other means.

(b) “Extremely hazardous waste” means any waste which:

(i) Will persist in a hazardous form for several years or more at a disposal site and which in its persistent form presents a significant environmental hazard and may be concentrated by living organisms through a food chain or may affect the genetic makeup of humans or wildlife; and

(ii) Is disposed of at a disposal site in such quantities as would present an extreme hazard to humans or the environment.

“Hazardous waste treatment and storage facility” means a facility that treats and stores hazardous waste and is authorized pursuant to Chapter 70.105 RCW and Chapter 173-303 WAC. It includes all contiguous land and structures used for recycling, reusing, reclaiming, transferring, storing, treating, or disposing of hazardous waste.

“Hydric soil” means soil that is saturated, flooded or ponded long enough during the growing season to develop anaerobic conditions in the upper part. The presence of hydric soil shall be determined following the methods described in the approved federal wetland delineation manual and applicable regional supplements.

“Hydrogeologic assessment” means a report detailing the subsurface conditions of a site and which indicates the susceptibility and potential for contamination of groundwater supplies.

“Hydrogeology” means the study of subsurface waters: their origin, occurrence, movement, and quality.

“Impermeable layer” means any layer of rock, sediment or soil which is incapable of transmitting fluids under pressure.

“Impervious surface” means any natural or human-produced material on the ground that does not allow surface water to penetrate into the soil. Impervious surfaces may consist of buildings, parking areas, driveways, roads, sidewalks, and any other areas of concrete, asphalt, plastic, or similar materials.

“In-kind” means an action to replace a critical area with a substitute critical area whose characteristics closely approximate those destroyed or degraded by a regulated activity.

“Initial determination” means the determination by the town that the site potentially includes or does not include, or is or is not adjacent to, or could or could not have probable significant adverse impacts on, critical areas.

“Lahars” means mudflows and debris flows originating from the slopes of a volcano.

“Lakes” means any impoundments of open water 20 acres or larger in size.

“Landfill” means any disposal facility or part of a facility at which solid waste is permanently placed in or on land and which is not a land-spreading facility.

“Landslide” means episodic downslope movement of a mass of soil or rock.

“Landslide hazard areas” means areas that, due to a combination of slope inclination, relative soil permeability and hydrologic factors, are susceptible to varying risks of landsliding.

“Liquefaction” means a process by which a water-saturated granular soil layer loses strength because of ground shaking commonly caused by an earthquake.

“Magnitude” means a quantity characteristic of the total energy released by an earthquake. Commonly, earthquakes are recorded with magnitudes from zero to eight on the Richter scale.

“Mayor.” See “Administrative official.”

“Mine hazard areas” are areas directly underlain by, adjacent to or abutting, or affected by mine workings such as adits, tunnels, drifts, or air shafts.

“Mitigation” means avoiding, minimizing, reducing, rectifying, eliminating, or compensating for adverse impacts.

“Mudflow” means a debris flow containing an abundance of fine particles.

“Native vegetation” means plant species that are indigenous and naturalized to the Skykomish region and which can be expected to naturally occur on a site. “Native vegetation” does not include noxious weeds.

“Normal maintenance and repair” means normal maintenance or repair of existing structures or developments, including damage by accident, fire or the elements. “Normal maintenance” includes those usual acts to prevent a decline, lapse, or cessation from a lawfully established condition. “Normal repair” means to restore a development to a state comparable to its original condition, including but not limited to its size, shape, configuration, location and external appearance, within a reasonable period after decay or partial destruction, except where repair causes substantial adverse effects to shoreline resources or environment. Replacement of a structure or development may be authorized as repair where such replacement is the common method of repair for the type of structure or development and the replacement structure or development is comparable to the original structure or development, including but not limited to its size, shape, configuration, location and external appearance, and the replacement does not cause substantial adverse effects to environment or shoreline resources.

“Noxious weed” means any plant which, when established, is highly destructive, competitive, or difficult to control by cultural or chemical practices (see Chapter 17.10 RCW). The State Noxious Weed List in Chapter 16-750 WAC is the officially adopted list of noxious weeds by the State Noxious Weed Control Board.

“NRCS” means the Natural Resources Conservation Service of the United States Department of Agriculture.

“Off-site” means action away from the site on which the critical area has been or will be impacted by a regulated activity.

“On-site” means action at or within 200 feet of the site on which the critical area has been or will be impacted by a regulated activity.

“Ordinance” means the critical areas ordinance as approved by the town council of Skykomish as codified in this chapter.

“Ordinary high water mark” means that mark which is found by examining the bed and banks of water bodies and ascertaining where the presence and action of waters are so common and usual, and so long continued in all ordinary years, that the soil has a character distinct from that of the abutting upland in respect to vegetation.

“Out-of-kind” means an action to replace a critical area with a substitute critical area whose characteristics do not closely approximate those destroyed or degraded by a regulated activity.

“Performance standards” means a set of measurable criteria that an activity must conform to and which may be used to determine the activity’s level of compliance with this chapter.

“Ponds” means any impoundments of open water less than 20 acres in size and larger than 2,500 square feet which maintain standing water throughout the year.

“Potable water” means any water which meets the quality standards for drinking purposes established by the state of Washington.

“Pre-application meeting” means a meeting between the town and the applicant to discuss the requirements of this chapter, outline the review process, and identify any potential concerns that might arise during the review process. This meeting takes place prior to formal application.

“Primary association area” means the area used on a regular basis by, or that is in close association with, or is necessary to the proper functioning of the habitat of, a critical species. “Regular basis” means that the habitat area is normally or usually known to contain a critical species. Regular basis is species and population dependent. Species that exist in low numbers may be present infrequently yet rely on certain habitat types.

“Priority habitat” means a habitat type or elements of significant value to one or more species as classified by the Department of Fish and Wildlife. A priority habitat may consist of a unique vegetation type or dominant plant species, a described successional stage, or a specific structural element per WAC 173-26-020(34).

“Proposal.” See “Development proposal.”

“Qualified consultant” means a person with expertise through training and/or experience in the area cited who is capable of performing the required services at a level approximating the state of the practice.

“Qualified fish and wildlife biologist” means a person with expertise in habitat issues with a degree in an appropriate field and experience as a biologist.

“Qualified wetlands biologist” means a person with expertise in wetland issues, and with experience in performing delineations, analyzing wetland functions and values, analyzing wetland impacts, and recommending wetland mitigation and restoration. This person shall be a certified professional wetland scientist or a noncertified professional wetland scientist with at least two years of full-time work experience as a wetlands professional.

“RCW” means the Revised Code of Washington.

“Reasonable use” means the minimum use to which a property owner is entitled under applicable state and federal constitutional provisions, including takings and substantive due process.

“Reasonable use exception” means an exception to the specific standards identified in this chapter granted to a property owner on the basis that a property owner should be allowed the reasonable use of his or her property.

“Recessional outwash geologic unit” means sand and gravel materials deposited by melt-water streams from receding glaciers.

“Regolith” means any body of loose, noncemented particles overlying and usually covering the bedrock.

“Remediation” means the cleanup and restoration of groundwater to some acceptable level.

“Restoration” means, for the purposes of sensitive areas regulation, an action which returns a sensitive area or buffer to a state in which its stability and functions approach its unaltered state as closely as possible.

“Riparian habitat” means habitat adjacent to aquatic systems with flowing water that contains elements of both aquatic and terrestrial ecosystems that mutually influence each other. The width of these areas extends to that portion of the terrestrial landscape that directly influences the aquatic ecosystem by providing shade, fine or large woody material, nutrients, organic and inorganic debris, terrestrial insects, or habitat for riparian-associated wildlife. Widths shall be measured from the ordinary high water mark or from the top of the bank if the ordinary high water mark cannot be identified. It includes the entire extent of the floodplain and the extent of vegetation adapted to wet conditions as well as adjacent upland plant communities that directly influence the stream system. Riparian habitat areas include those riparian areas severely altered or damaged due to human development activities.

“Scrub-shrub wetland” means a wetland with at least 30 percent of its surface area covered by woody vegetation less than 20 feet in height as the uppermost strata.

“Seismic hazard areas” means areas that, due to a combination of soil and groundwater conditions, are subject to severe risk of ground shaking, subsidence, or liquefaction of soils during earthquakes. These areas are typically underlain by soft or loose saturated soils (such as alluvium), have a shallow groundwater table and are typically located on the floors of river valleys.

“SEPA” means the Washington State Environmental Policy Act.

“Setbacks” means the required distances between every structure on a lot and the lot lines of the lot on which it is located, or from rights-of-way, access easements, or the edges of critical areas as delineated according to the standards and procedures defined in this chapter.

“Shoreline master program” means the shoreline master program of the town of Skykomish (Chapter 16.25 SMC).

“Site assessment” means a site-specific analysis which identifies the presence of critical areas, classifies and designates the critical areas, documents site conditions, analyzes project-generated impacts, and identifies appropriate mitigative measures. Site assessments include wetland reports, hydrogeologic reports, and habitat management plans.

“Slope” means an inclined earth surface, the inclination of which is expressed as the ratio of horizontal distance to vertical distance from the toe to the top of the surface.

“Slump” means the downward and outward movement of a mass of bedrock or regolith along a distinct surface of failure.

“Soil” means all unconsolidated materials above bedrock described in the United States Department of Agriculture Natural Resources Conservation Service (NRCS) Classification System.

“Sole source aquifer” means an area so designated by the Environmental Protection Agency pursuant to the Federal Drinking Water Act.

“Stream.” See “Watercourse.”

“Surficial geology” means the geology of surficial deposits including soils and/or Quaternary sediments.

“Temporary erosion control” means on-site and off-site control measures that are needed to control conveyance or deposition of earth, turbidity, or pollutants during development, construction, or restoration.

“Threatened species” means a species, native to the state of Washington, that is likely to become endangered in the foreseeable future throughout a significant portion of its range within the state without cooperative management or the removal of threats as designated by WAC 232-12-011.

“Town” means the town of Skykomish.

“Town clerk.” See “Administrative official.”

“Underground tank” means any one or a combination of tanks (including underground pipes connected thereto) which are used to contain or dispense an accumulation of hazardous substances or hazardous wastes, and the volume of which (including the volume of underground pipes connected thereto) is 10 percent or more beneath the surface of the ground.

“Unfavorable determination” means the determination by the town that the activity will not adequately mitigate its impact upon the critical area(s) and/or comply with performance standards of this chapter and is not authorized.

“Unprotected aquifer” means any aquifer which is neither confined nor protected by overlying surface or subsurface impermeable layers.

“USGS” means United States Geological Survey.

“Utility line” means pipe, conduit, cable, or other similar facility by which services are conveyed to the public or individual recipients. Such services shall include, but are not limited to, water supply, electric power, gas, communications, and sanitary sewers.

“Values” means the desirable attributes associated with a critical area and its components which contribute to public health, safety, and welfare.

“Vesting” is a legal doctrine whereby a valid and fully complete building or other land development application for a project that is permitted under the zoning or other land use controls in effect on the date of the application shall be considered under the building permit ordinance, zoning, or other land use controls in effect on the date of such valid and fully complete building application.

“View corridor.” A view corridor is intended to retain a scenic view for the enjoyment of the public and the property owners, while protecting the integrity of the natural environment and not creating a situation that could damage property or life. In addition, protection of a view corridor is intended to create a favorable public image that reinforces the town’s assets and will encourage economic development and tourism within the town and ensure the enhancement of property values in areas within the view corridor. These conditions are intended to spur community pride and contribute to the local quality of life and enjoyment that Skykomish residents may take in their community and their property. The grading of property for the purpose of creating a view corridor on private land is not acceptable under this definition, nor is any action that is in violation of the town’s shoreline master program, Chapter 16.25 SMC, or the clearing and grading ordinance, Chapter 15.20 SMC.

“Volcanic hazard areas” means areas that are subject to pyroclastic flows, lava flows, and inundation by debris flows, mudflows, or related flooding resulting from volcanic activity.

“Vulnerability” means the degree to which groundwater may become contaminated, depending on the local hydrologic characteristics and amounts of potential groundwater contaminant present.

“WAC” means the Washington Administrative Code.

“Water typing system” means waters classified according to WAC 222-16-030 as follows:

(a) “Type S Water” means all waters, within their bankfull width, as inventoried as “shorelines of the state” under Chapter 90.58 RCW and the rules promulgated pursuant to Chapter 90.58 RCW, including periodically inundated areas of their associated wetlands.

(b) “Type F Water” means segments of natural waters other than Type S Waters, which are within the bankfull widths of defined channels and periodically inundated areas of their associated wetlands, or within lakes, ponds, or impoundments having a surface area of 0.5 acre or greater at seasonal low water and which in any case contain fish habitat or are described by one of the following four categories:

(i) Waters which are diverted for domestic use by more than 10 residential or camping units or by a public accommodation facility licensed to serve more than 10 persons, where such diversion is determined by the Department to be a valid appropriation of water and the only practical water source for such users. Such waters shall be considered to be Type F Water upstream from the point of such diversion for 1,500 feet or until the drainage area is reduced by 50 percent, whichever is less;

(ii) Waters which are diverted for use by federal, state, tribal or private fish hatcheries. Such waters shall be considered Type F Water upstream from the point of diversion for 1,500 feet, including tributaries if highly significant for protection of downstream water quality. The Department may allow additional harvest beyond the requirements of Type F Water designation provided the Department determines after a landowner-requested on-site assessment by the Department of Fish and Wildlife, Department of Ecology, the affected tribes and interested parties that:

(A) The management practices proposed by the landowner will adequately protect water quality for the fish hatchery; and

(B) Such additional harvest meets the requirements of the water type designation that would apply in the absence of the hatchery;

(iii) Waters which are within a federal, state, local, or private campground having more than 10 camping units; provided, that the water shall not be considered to enter a campground until it reaches the boundary of the park lands available for public use and comes within 100 feet of a camping unit, trail or other park improvement;

(iv) Riverine ponds, wall-based channels, and other channel features that are used by fish for off-channel habitat. These areas are critical to the maintenance of optimum survival of fish. This habitat shall be identified based on the following criteria:

(A) The site must be connected to a fish habitat stream and accessible during some period of the year; and

(B) The off-channel water must be accessible to fish.

(c) “Type Np Water” means all segments of natural waters within the bankfull width of defined channels that are perennial nonfish habitat streams. Perennial streams are flowing waters that do not go dry any time of a year of normal rainfall and include the intermittent dry portions of the perennial channel below the uppermost point of perennial flow.

(d) “Type Ns Water” means all segments of natural waters within the bankfull width of the defined channels that are not Type S, F, or Np Waters. These are seasonal, nonfish habitat streams in which surface flow is not present for at least some portion of a year of normal rainfall and are not located downstream from any stream reach that is a Type Np Water. Ns Waters must be physically connected by an aboveground channel system to Type S, F, or Np Waters.

“Watercourse” means any portion of a channel, bed, bank, or bottom waterward of the ordinary high water line of waters of the state, including areas in which fish may spawn, reside, or through which they may pass, and tributary waters with defined beds or banks, which influence the quality of fish habitat downstream. This includes watercourses that flow on an intermittent basis or which fluctuate in level during the year and applies to the entire bed of such watercourses whether or not the water is at peak level. This definition does not include irrigation ditches, canals, stormwater runoff devices, or other entirely artificial watercourses, except where they exist in a natural watercourse that has been altered by humans.

“Wellhead protection area (WHPA)” means the portion of a zone of contribution for a well, wellfield or spring, as defined using criteria established by the State Department of Ecology.

“Wetland” or “wetlands” means areas that are inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. Wetlands do not include those artificial wetlands intentionally created from nonwetland sites, including, but not limited to, irrigation and drainage ditches, grass-lined swales, canals, detention facilities, wastewater treatment facilities, farm ponds, and landscape amenities, or those wetlands created after July 1, 1990, that were unintentionally created as a result of the construction of a road, street, or highway. Wetlands may include those artificial wetlands intentionally created from nonwetland areas created to mitigate conversion of wetlands.

“Wetland community description” means a thorough description of the wetland and any resident plant and animal species.

“Wetland delineation” means the mapping of a wetland and establishment of its boundary or edge.

“Wetland functions” means those natural processes performed by wetlands, such as facilitating food chain production; providing habitat for nesting, rearing, and resting sites for aquatic, terrestrial, or avian species; maintaining the availability and quality of water acting as recharge and discharge for groundwater aquifers; moderating surface water and stormwater flows; and other functions including, but not limited to, those identified in 33 CFR 320.4(b)(2). (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 2, 1998)

Article III. General Provisions

16.15.070 Authorizations required.

(1) Prior to fulfilling the requirements of this chapter, Skykomish shall not grant any approval or permission to alter the condition of any land, water or vegetation, or to construct or alter any structure or improvement including, but not limited to, the following:

(a) Building permit;

(b) Conditional use permit;

(d) Shoreline substantial development permit;

(e) Shoreline variance;

(f) Short subdivision;

(g) Subdivision;

(h) Zoning variance;

(i) Zoning code amendment; or

(j) Any other adopted permit or required approval not expressly exempted by this chapter.

(2) Any in-water or wetlands work will also require review and authorization by state and federal agencies; it is the applicant’s responsibility to obtain all required approvals before beginning work. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 3.01.01, 1998)

16.15.080 Jurisdiction.

(1) This chapter shall apply to all lands, all land uses and development, and all structures and facilities in Skykomish, except as exempted under SMC 16.15.090. This chapter shall apply to every person, individual, firm, partnership, corporation, governmental agency or other entity which owns, leases, or administers land within Skykomish.

(2) This chapter provides regulations for land use and development in and adjacent to critical areas as defined herein. These regulations are additional to, and coordinated with, the Skykomish comprehensive plan, the Skykomish shoreline master program, regulations adopted pursuant to the Skykomish zoning ordinance (SMC Title 18) and any other applicable regulations adopted by the town of Skykomish. This chapter does not apply to environmentally sensitive areas waterward of the ordinary high water mark. If there are any conflicts between this chapter and other applicable regulations, the most restrictive requirements apply.

(3) Appendix 1 provides a general summary of preliminary project review (exemptions, waivers, vesting, and reasonable use exceptions) and the critical area review process. The table in this appendix is provided to guide the applicant through the various steps involved in the process; however, the text in the table is not intended to replace the individual sections of this chapter. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 3.01.02, 1998)

16.15.090 Exemptions.

The following developments, associated uses, and activities shall be exempt from the provisions of this chapter; provided, that all exempted activities shall use reasonable methods or accepted best management practices with the least amount of potential impact to the critical areas. Any incidental damage to, or alteration of, a critical area that is not a necessary outcome of the exempted activity shall be restored, rehabilitated, or replaced at the responsible parties’ expense. This includes, but is not limited to, accessways or paths, vegetation removal or damage beyond a reasonable work zone, and grading and clearing not essential to the ongoing operation of the site’s use. To be exempt from this chapter does not give permission to destroy a critical area or ignore risk from natural hazards. Exempted activities are:

(1) Emergency activities necessary to prevent an immediate threat to the public health, safety, or welfare. An emergency is an unanticipated and imminent threat to the public health or safety or to the environment which requires immediate action within a period of time too short to allow full compliance with this chapter.

Emergency actions that create an impact to a critical area or its buffer shall use reasonable methods that can address the emergency, but also that have the least possible impact to the critical area or its buffer. That person or agency undertaking such action shall notify the town clerk within one working day following commencement of the emergency activity; the town clerk shall notify the town. Following such notification, the town shall determine if the action taken was within the scope of the emergency actions allowed in this subsection. If the town determines that the action taken, or any part of the action taken, was beyond the scope of the allowed emergency actions, then the enforcement provisions of SMC 16.15.670 through 16.15.690 shall apply. After the emergency, the critical area and any associated buffers shall be restored to the maximum extent possible.

(2) Normal and routine maintenance, operation, and reconstruction of existing structures, facilities, improved areas, utilities, sewage disposal systems, water systems, ponds, or public and private roads and driveways.

When such structures are damaged by an act of nature, they may be reconstructed or replaced within one year of the act of nature; provided, that the new construction or related activity does not further intrude into a critical area or established buffer. Such reconstruction and replacement is subject to other applicable town regulations and permit requirements.

(3) Modification of any existing structure that does not alter or add to the nature of the existing use and does not expand the building footprint.

(4) Operation and maintenance of any system of existing dikes, levees, ditches, drains, or other facilities which were created, developed or utilized primarily as a part of a drainage or diking system. Operation and maintenance does not include the expansion or new construction of drainage ditches and related facilities.

(5) Replacement, modification, installation, or construction of utility facilities, lines, pipes, mains, equipment, or appurtenances, not including substations, when such facilities are located within the improved portion of the public right-of-way or a town-authorized private roadway, except those activities that alter a wetland or watercourse, such as culverts or bridges, or result in the transport of sediment or increased stormwater.

(6) Removal of hazardous trees and vegetation and, when necessary, measures to control a fire or halt the spread of disease or damaging insects consistent with the State Forest Practices Act, Chapter 76.09 RCW; provided, that no vegetation shall be removed from a critical area or its buffer without approval from the town. The removed tree or vegetation shall be replaced with like species at least one month prior to the end of the growing season.

(7) Activities involving artificially created wetlands or streams intentionally created from nonwetland sites, including, but not limited to, grass-lined swales, irrigation and drainage ditches, detention facilities, and landscape features, except those features that provide critical habitat for anadromous fish and those features which were created as mitigation for projects or alterations subject to the provisions of this chapter.

(8) Outdoor recreational activities, including, but not limited to, hunting and fishing, bird-watching, boating, swimming, hiking, and use of nature trails.

(9) The harvesting of wild crops in a manner that is not injurious to natural reproduction of such crops and provided the harvesting does not require tilling soil, planting crops, or changing existing topography, water conditions or water sources.

(10) Education and scientific research.

(11) Construction or modification of navigational aids and boundary markers.

(12) Site investigation work necessary for land use applications such as surveys, soil logs, percolation tests and other related activities. In every case, disturbed areas shall be immediately restored.

(13) Existing and ongoing agricultural activities and related development activities, provided no alteration of flood storage capacity or conveyance or increase in the extent or nature of impact to a critical area or its buffer occurs beyond that which has occurred prior to the effective date of the ordinance codified in this chapter.

(14) Forest practices regulated and conducted in accordance with the provisions of Chapter 76.09 RCW and forest practices regulations, WAC Title 222, and which are exempt from town of Skykomish jurisdiction.

If the proposed activity meets any of the listed exemptions, including any best management practice and/or restoration requirements, completion of a critical area checklist or further critical area review is not required. To determine if a proposed project is exempt, the permit applicant may describe the proposed project in writing and state the criteria in this section that apply to the requested exemption and submit this to the town clerk. The town will review the exemption request to verify that it complies with this chapter and certify or reject the exemption. If the proposal is certified as complete, it shall be placed on file in the town; if the project is rejected, the applicant may continue in the review process and shall submit to the requirements of the review process. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 3.01.03, 1998)

16.15.100 Waivers for subsequent approvals.

Repealed by Ord. 466. (Ord. 362 § 2, 2005; Ord. 269 § 3.01.04, 1998)

16.15.110 Vested development and pending development approvals.

Repealed by Ord. 466. (Ord. 362 § 2, 2005; Ord. 269 § 3.01.05, 1998)

16.15.130 Reasonable use exceptions.

(1) If the application of this chapter would deny all reasonable use of the property then a reasonable use exception from the standards of this chapter may be requested. Reasonable use exception requests shall follow the procedures of Chapter 18.70 SMC, Conditional Uses, and the consolidated application process, and shall only be granted if all of the following criteria are met:

(a) The application of this chapter would deny all reasonable use of the property;

(b) There is no other reasonable use with less impact on the critical area;

(c) The proposed development does not pose an unreasonable threat to the public health, safety or welfare on or off the development proposal site;

(d) Any alterations permitted to these critical areas shall be the minimum necessary to allow for reasonable use of the property;

(e) The proposal attempts to protect and mitigate impacts to the critical area functions and values consistent with the best available science; and

(f) The inability of the applicant to derive reasonable use of the property is not the result of actions by the applicant in subdividing the property or adjusting a boundary line, thereby creating the undevelopable condition after the effective date of the ordinance codified in this chapter.

(2) An application for a reasonable use exception shall be filed with the town clerk. The burden of proof shall be on the applicant to bring forth evidence in support of the application and to provide sufficient information on which any decision has to be made on the application.

(3) Any authorized alteration of a critical area under this section shall be subject to conditions established by the town of Skykomish and shall require mitigation under an approved mitigation plan. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 3.01.07, 1998)

16.15.140 Critical area review.

(1) Skykomish shall complete a critical area review prior to granting any permit approval for a development or other alteration on a site which is found to likely include, or be adjacent to, or have significant impact upon one or more critical areas, unless otherwise provided in this chapter. As part of this review, Skykomish shall verify the information submitted by the applicant, and:

(a) Confirm the extent, nature, and type of any critical areas identified, and evaluate any required critical area detailed study;

(b) Determine whether the development proposal conforms to the purposes and performance standards of this chapter;

(c) Assess impacts on the critical area from the activities and uses proposed and determine whether any proposed alterations to, or impacts upon, critical areas are necessary and unavoidable in order to meet the objectives of the proposal; and

(d) Determine if any required mitigation plans proposed by the applicant are sufficient to protect the critical area and public health, safety, and welfare concerns consistent with the goals, purposes, objectives, and requirements of this chapter.

(2) Unless otherwise indicated in this chapter, the applicant shall be responsible for the initiation, preparation, submission, and expense of all required assessments, studies, plans, reconnaissances, and other work in support of the application. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 3.02.01, 1998)

16.15.150 Minimum standards.

Any proposed activity shall be conditioned as necessary to mitigate impacts to critical areas and conform to the performance standards required by this chapter. Subject to the reasonable use exception of SMC 16.15.130, any project that cannot adequately mitigate its impacts to critical areas or meet the performance standards required by Articles IV through VII of this chapter shall be denied. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 3.02.02, 1998)

16.15.160 Concurrent requirements.

Areas characterized by one or more particular critical areas may also be subject to other regulations established by this chapter due to overlap or multiple functions of some critical areas. For example, wetlands may be defined and regulated according to the wetland and fish and wildlife habitat provisions of this chapter. In the event of conflict between regulations for any particular critical areas in this chapter, the most restrictive regulations shall apply. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 3.02.03, 1998)

16.15.170 Pre-application meeting.

Any person preparing for the permitting of activity that may be regulated by the provisions of this chapter shall be encouraged to hold a pre-application meeting with the town prior to the critical area review process. At this meeting, the town shall discuss the requirements of this chapter, outline the review process, and work with the activity proponent to identify any potential concerns that might arise during the review process. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 3.03.01, 1998)

16.15.180 Critical area forms.

(1) For any proposed activity not found to be exempt under SMC 16.15.090, the applicant shall complete critical area forms provided by the town. The form must be submitted to the town clerk prior to consideration of any permit request which requires a critical area review, as described in SMC 16.15.140. The form shall be signed by the applicant and notarized.

(2) Following receipt of the application, the town will visit the subject property and review materials submitted by the applicant, together with the town’s maps and other critical area resources to determine whether there are any critical area indicators present such that critical areas or their required buffers might possibly be impacted by the proposed activity. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 3.03.02, 1998)

16.15.190 Initial determination.

(1) If the town determines that the site potentially includes, or is adjacent to, critical areas, or that the proposed project could have significant adverse impacts on critical areas, the town shall notify the applicant that a critical area detailed study is required for each of the indicated critical area types.

(2) If the review of the checklist and critical area resources and site visit do not indicate that any critical areas are potentially included or adjacent to the activity, or could suffer probable significant adverse impacts from the activity, then the town shall rule that the critical area review is complete. Town staff shall note on the checklist the conclusion and the reasons that no further review was required, and shall include a summary of this information in any staff report on the underlying permit.

(3) The applicant shall acknowledge in writing that a determination regarding the apparent absence of one or more critical areas by the town is not intended to be an expert certification regarding the presence of critical areas and that the determination is subject to possible reconsideration and reopening if new information is received. If the applicant wants greater assurance of the accuracy of the critical area review determination, the applicant may hire a qualified consultant to provide such assurances. Note: while the town’s initial determination is intended to eliminate the need for further critical area review when site conditions do not warrant such review, this decision may be challenged if it appears that the determination was incorrect. In order to prevent disruption in the review process as well as to protect the community’s natural resources, a critical area detailed study or studies are required if there is any doubt about whether the proposed activity will impact critical areas. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 3.03.03, 1998)

16.15.200 Waivers from critical area detailed study requirements.

(1) The town may waive the requirement for a critical area detailed study if there is substantial evidence that:

(a) There will be no alteration of the critical areas or required buffer; and

(b) The development proposal will not impact the critical area in a manner contrary to the purpose, intent and requirements of this chapter; and

(2) Notice of the findings substantiating the waiver will be attached to the permit request. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 3.03.04, 1998)

16.15.210 Critical area detailed studies.

(1) Preliminary Reconnaissance. If a critical area detailed study is determined to be necessary as described in SMC 16.15.190, then a data review and field reconnaissance shall be performed by a qualified consultant for that type of critical area. If this detailed study reveals that no critical area is actually present, then a statement of this finding along with appropriate supporting evidence shall be prepared by the consultant and submitted to the town by the applicant. The town shall make a determination of completeness and accuracy and either approve the finding or return it to the applicant for further work. An approved finding of the lack of a critical area shall satisfy all of the requirements for a detailed study.

(2) Minimum Requirements. If the data review and field reconnaissance reveal that a critical area is present, then a complete detailed study shall be prepared by the applicant and submitted to the town. At a minimum, a critical area detailed study shall comply with the specific criteria in Articles IV through VII of this chapter and clearly document:

(a) The boundary and extent of the critical area;

(b) The existing function, value, and/or hazard associated with the critical area;

(c) The probable impact upon the function, value, and/or hazard associated with the critical area from the project as proposed; and

(d) A mitigation plan as described in SMC 16.15.240.

(3) Limitations to Study Area. If the applicant, together with assistance from the town, cannot obtain permission for access to properties adjacent to the project area, then the critical area detailed study may be limited accordingly.

(4) Preparation and Determination of Completeness.

(a) The critical area detailed study shall be prepared by a qualified consultant for the type of critical area or areas involved. The qualified consultant may consult with the town prior to or during preparation of the critical area special study to obtain town approval of modifications to the contents of the study where, in the judgment of the qualified consultant, more or less information is required to adequately address the critical area impacts and required mitigation.

(b) Any site plan maps required by this chapter may be combined into a single map wherever possible; provided, that the resultant map clearly presents the information required by the provisions of this chapter.

(c) The town will review the submitted critical area detailed study. If the critical area detailed study is found to be incomplete, the applicant shall be notified and the critical area review process shall be suspended pending correction of the inadequacies. The applicant may resubmit the study for reconsideration after further work is completed. If the critical area detailed study is found to be complete, then the critical area review will move forward to the town’s final determination.

(d) The detailed study should be viewed as both a statement of facts and a proactive planning tool. It is recommended that the applicant discuss the proposed activity and possible critical area impacts with town staff prior to completion of the detailed study to facilitate development of appropriate mitigation measures. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 3.03.05, 1998)

16.15.220 Final determination.

(1) Following submission of a completed detailed study, the town will review the detailed study and make a determination based on the critical area detailed study and any other available and appropriate materials. The town’s determination will address the adequacy of the project, as proposed, to mitigate any effects it may have on critical areas that are included within or adjacent to the project site. In addition, the town will assess the adequacy of the project proposal’s compliance with the applicable performance standards. Notice of this determination shall be attached to the permit request and the critical area review shall be complete.

(a) A Favorable Determination. A determination from the critical area review that the project proposal adequately mitigates its impacts on the critical areas and complies with the applicable performance standards satisfies the provisions of this chapter only. It should not be construed as endorsement or approval of the original or any subsequent permit requests. The requirements of this chapter are in addition to, and do not replace, any other requirements associated with these permit requests. Conversely, the town may not grant a requested permit for any activity whose critical area review reveals that adequate mitigation is not provided and/or does not comply with applicable performance standards.

(b) An Unfavorable Determination. When a project proposal is found to not adequately mitigate its impacts on the critical areas and/or not comply with applicable performance standards, the town shall prepare written notice of the reasons for the finding of noncompliance. Such notice shall identify the critical area impacted, the nature of the impact, proposed mitigation measures (if any), and, at the town’s discretion, recommendations for achieving compliance. Recommendations for achieving compliance shall only be offered if they are identified during the detailed study consideration and do not require further investigation by the town.

(2) Following notice of a determination from the critical area review that the proposed activity does not adequately mitigate its impacts on the critical areas and/or does not comply with applicable performance standards, the applicant may request consideration of a revised mitigation plan. If the revision is found to be substantial and relevant to the critical area review, the town may reopen the critical area review and make a new determination based on this revised mitigation plan. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 3.03.06, 1998)

16.15.230 Completion of the critical area review.

If at any time prior to completion of the public input process on associated permits or approvals the town receives new evidence that a critical area may be included in, adjacent to, or significantly impacted by the proposed activity, then the town shall reopen the critical area review process pursuant to this chapter and shall require whatever level of critical area review and mitigation as is indicated by the evidence. Once the public input process on all associated permits or approvals is completed and the record is closed, then the town’s determination regarding critical areas pursuant to this chapter shall be final, unless appealed as described in SMC 16.15.700. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 3.03.07, 1998)

16.15.240 Mitigation standards – Minimum standards.

(1) All proposed critical area alterations shall include mitigation sufficient to maintain the function and values of the critical area, or to prevent risk from a hazard posed by a critical area. Mitigation of one critical area impact should not result in unmitigated impacts to another critical area. Mitigation includes avoiding, minimizing or compensating for adverse impacts to regulated critical areas or their buffers. The preferred sequence of mitigation is defined below ((a) is most preferred, (f) is least preferred):

(a) Avoid the impact altogether by not taking a certain action or parts of an action.

(b) Minimize the impacts by limiting the degree or magnitude of the action and its implementation by using appropriate technology, or by taking affirmative steps to avoid or reduce impacts.

(c) Rectify the impact by repairing, rehabilitating or restoring the affected environment to the conditions existing at the time of the initiation of the project.

(d) Reduce or eliminate the impact over time through use of preservation and maintenance operations during the life of the action.

(e) Compensate for the impact by replacing, enhancing, or providing substitute resources or environments.

(f) Monitoring the impact and taking appropriate corrective measures.

(2) Possible mitigation techniques include, but are not limited to: buffers, setbacks, limits on clearing and grading, creation of artificial wetlands, streambank stabilization, modified construction methods, and best management practices for erosion control and maintenance of water quality.

(3) All proposed mitigation shall be documented in a mitigation plan as included as an element of the critical area detailed study. The mitigation plan shall include a description of the following:

(a) What mitigation, specifically, is proposed;

(b) How the proposed mitigation will maintain the critical area function, any ongoing monitoring and/or inspection that may be required to ensure the adequacy of the proposed mitigation, and an evaluation of the anticipated effectiveness of the proposed mitigation;

(d) Any required critical expertise necessary to install, monitor or inspect the proposed mitigation; and

(e) Any bonding or other security required to ensure performance and/or maintenance of the proposed mitigation. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 3.04.01, 1998)

16.15.250 Mitigation standards – Buffers.

(1) Buffers have been determined to be necessary and appropriate to protect critical areas and their functions. In the sections of this chapter where specific buffers are identified, those buffers are deemed “required” or “standard” buffers. Except as otherwise specified herein, it is assumed that the buffer is well vegetated with native species appropriate to the ecoregion and required buffers shall be retained in their preexisting condition. If the buffer does not consist of vegetation adequate to provide the necessary protection, then either the buffer area should be planted or the buffer width should be increased. If a project does not propose any alteration of those buffers or of the associated critical area, then subject to the following provision, no additional mitigation will be required to protect the critical area. Additional mitigation beyond the required buffer shall be required if the town finds that, based on unique features of the particular critical area or its buffer or of the proposed activity, the required buffers will not adequately protect the function of the critical area or prevent risk of hazard from the critical area and that additional mitigation or buffering is required to adequately protect the critical area function or to prevent risk of hazard from the critical area.

(2) The buffer shall be marked prior to any site alteration and boundary markers shall be visible, durable, and permanently affixed to the ground. The boundary markers shall remain until all activity is completed and a final site inspection is completed by the town.

(3) An eight-foot minimum setback shall be required from the buffer area for any construction of impervious surface area greater than 120 square feet. Clearing, grading, and filling within this setback shall only be allowed when the applicant can demonstrate that vegetation within the buffer will not be damaged. Where temporary buffer disturbance or alteration has or will occur in conjunction with regulated activities, revegetation with appropriate native vegetation shall be required and completed one month before the end of the growing season.

(4) Normal nondestructive pruning and trimming of vegetation for maintenance purposes, or thinning of limbs of individual trees to provide a view corridor, shall not be subject to these buffer requirements. Enhancement of a view corridor shall not be construed to mean excessive removal of trees or vegetation that impairs views. Removal or destruction of trees with a caliper width greater than six inches at four feet above the ground shall be considered destructive pruning and is prohibited by this chapter.

(5) If the applicant proposes to reduce these required buffers or to alter the required buffer, then the applicant shall demonstrate why such buffer modification, together with any alternative mitigation proposed in the critical area detailed study, is sufficient to adequately protect the critical area function or to prevent risk of hazard from the critical area.

(6) The critical area detailed study shall make adequate provision for long-term buffer protection. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 3.04.02, 1998)

16.15.260 Mitigation standards – Land divisions and easements.

In land subdivisions or planned unit developments, critical areas and their associated buffers shall be placed in separate tracts to be owned by the developer, by all lots in common, by a homeowner’s association or some other separate legal entity such as a land trust. In development proposals not involving a new land division, the critical area and its associated buffer may instead be encumbered by a native growth or conservation easement to ensure long-term protection in its unaltered state. These separate tracts or easements, however, do not require any provisions for public access and appropriate restrictions may be included in the easement or title documents. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 3.04.03, 1998)

16.15.270 Mitigation standards – Bonding.

The town shall have the discretion to require a bond which will ensure compliance with the mitigation plan if activity related to the protection of the critical area(s) (for example, monitoring or maintenance) or construction is scheduled to take place after the issuance of the town’s permit. The bond shall be in the form of either a surety bond, performance bond, assignment of savings account, or an irrevocable letter of credit guaranteed by an acceptable financial institution with terms and conditions acceptable to the town’s attorney. The bond shall be in the amount of 125 percent of the estimated cost of the uncompleted actions or construction or the estimated cost of restoring the function and values of the critical areas which are at risk, whichever is higher. The term of the bond shall be two years, or until the additional activity or construction has been completed and has passed the necessary inspections, whichever is longer. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 3.04.04, 1998)

16.15.280 Mitigation standards – Incentives.

The following incentives are intended to minimize the burden to individual property owners from application of the provisions of this chapter:

(1) Open Space. Any property owner on whose property a critical area or its associated buffer is located and who proposes to put the critical area and buffer in a separate tract may apply for current use property tax assessment on that separate tract through King County, pursuant to Chapter 84.34 RCW.

(2) Conservation Easement. Any person whose property contains an identified critical area or its associated buffer may place a conservation easement over that portion of the property by naming the town or its qualified designee under RCW 64.04.130 as beneficiary of the conservation easement. This conservation easement may be in lieu of a separate critical areas tract that qualifies for open space tax assessment described in subsection (1) of this section. The purpose of the easement shall be to preserve, protect, maintain, restore and limit future use of the property affected. The terms of the conservation easement may include prohibitions or restrictions on access and shall be approved by the property owner and the town. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 3.04.05, 1998)

16.15.290 Map folio.

(1) The approximate location and extent of critical areas in the town of Skykomish are shown on maps, hereinafter known as the “map folio.” These maps, with the exception of frequently flooded areas, are provided only as a guide to be used to alert the user to the possible distribution, location, and extent of critical areas. The map folio shall be utilized as a source of generalized information and shall not be considered as regulatory standards or a substitute for site-specific assessments. The actual type, extent, and boundaries of critical areas shall be determined in the field by a qualified consultant according to the procedures, definitions, and criteria established by this chapter.

(2) The map folio shall consist of these maps. The generalized maps are the best currently available to Skykomish and will be updated on an ongoing basis. Critical areas mapped under the site assessment requirements of this chapter will be compiled in a database for future use. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 3.05.01, 1998)

16.15.300 Priority of data.

In the event of any conflict between the critical area location or designation shown on the town’s maps and the criteria or standards of this chapter, the criteria and standards shall prevail. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 3.05.02, 1998)

Article IV. Wetlands

16.15.310 Wetland review.

It is the policy of the town of Skykomish to require site planning to avoid or minimize damage to wetlands wherever possible, to require that activities not dependent upon a wetland location be located at upland sites, and to achieve no net loss of wetlands by requiring restoration or enhancement of degraded wetlands or creation of new wetlands to offset losses that are unavoidable. In addition, it is the intent of the town of Skykomish that activities in or affecting wetlands not threaten public safety, cause nuisances, or destroy or degrade natural wetland functions and values. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 4.01, 1998)

16.15.320 Wetland designation.

(1) The wetlands of the town of Skykomish are fragile ecosystems which serve a number of important beneficial functions. Wetlands assist in the reduction of erosion, siltation, flooding, ground and surface water pollution, and provide wildlife, plant, and fisheries habitats. Wetland destruction or impairment may result in increased public or private costs or property losses.

(2) Wetlands shall be designated in accordance with the definitions, methods and standards set forth in the approved federal wetland delineation manual and applicable regional supplements. All areas within the town of Skykomish meeting these criteria, regardless of the presence or lack of any formal identification as such, are hereby designated as critical areas and are subject to the provisions of this chapter. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 4.01.01, 1998)

16.15.330 Wetland rating (classification).

Wetlands shall be rated (classified) as either Category I, Category II, Category III, or Category IV according to the criteria found in the Washington State Wetland Rating System for Western Washington (Ecology Publication No. 14-06-029, or as revised), as summarized in the following table:

Table 1
Criteria for Each Category of Wetlands
Category I Wetlands
Category I wetlands means wetlands that meet any of the following criteria:
1. Wetlands that are relatively undisturbed estuarine wetlands larger than one acre; or
2. Wetlands that are identified by scientists of the Washington Natural Heritage Program/DNR as high-quality wetlands; or
3. Bogs; or
4. Mature and old-growth forested wetlands larger than one acre; or
5. Wetlands that perform many functions well (scoring 23 points or more). These wetlands:
a. Represent unique or rare wetland types;
b. Are more sensitive to disturbance than most wetlands;
c. Are relatively undisturbed and contain ecological attributes that are impossible to replace within a human lifetime; or
d. Provide a high level of functions.
Category II Wetlands
Category II wetlands satisfy no Category I criteria and are:
1. Wetlands with a moderately high level of functions (scoring between 20 and 22 points).
Category III Wetlands
Category III wetlands satisfy no Category I, II, or IV criteria and are:
1. Wetlands with a moderate level of functions (scoring between 16 and 19 points).
Wetlands scoring between 16 and 19 points generally have been disturbed in some ways and are often less diverse or more isolated from other natural resources in the landscape than Category II wetlands.
Category IV Wetlands
Category IV wetlands satisfy no Category I, II, or III criteria and are:
1. Wetlands that have the lowest levels of functions (scoring less than 16 points) and are often heavily disturbed. These are wetlands that should be replaced or improved because these wetlands may provide some important functions and should be protected to some degree.

(Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 4.01.02, 1998)

16.15.340 Wetland indicators.

The following indicators shall be used by the town to determine the need for a detailed study:

(1) Listing in the town’s critical areas map folio as a wetland; or

(2) Documentation, through references from a reasonable source(s), of the presence of a wetland in or adjacent to the site; or

(3) A finding by a qualified wetlands biologist that an appropriate hydrologic, soil, and/or vegetation regime indicative of a wetland exists; or

(4) A reasonable belief by the town that a wetland may exist. Such reasonable belief shall be supported by a site visit and subsequent consultation with a qualified wetlands biologist. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 4.01.03, 1998)

16.15.350 Wetland detailed study requirements.

If a wetland detailed study is required, it shall meet the following requirements in addition to the general requirements of SMC 16.15.210:

(1) The wetland detailed study shall be completed by a qualified wetlands biologist. Evidence of qualifications shall be provided with the study.

(2) The extent and boundaries of any wetland shall be determined by a qualified wetlands biologist trained in conducting delineations in accordance with the methodology specified under SMC 16.15.320(2). The boundary shall be surveyed and mapped at a scale no smaller than one inch equals 200 feet.

(3) A wetland community description including a wetland classification as described in SMC 16.15.330 shall be completed.

(4) A written assessment that includes, but is not limited to, a discussion of hydrology (source of water in the system, water quality, flood and stream flow attenuation, seasonality of presence of water, if applicable), soils, vegetation, fish and wildlife habitat, recreation, and aesthetics shall be completed.

(5) The site plan for the proposed activity shall be mapped at the same scale as the wetland map, showing the extent of the proposed activity in relationship to the surveyed wetland and including a detailed narrative describing the project, its relationship to the wetland, and its potential impact on the wetland.

(6) The proposed mitigation plan shall include a discussion on how the activity has been mitigated to avoid and minimize adverse impacts to wetlands and shall follow the general mitigation plan requirements described in SMC 16.15.240 through 16.15.280. Wetland Mitigation in Washington State – Part 1: Agency Policies and Guidance (Version 1) (Ecology Publication No. 06-06-011a) (or any succeeding documents) should be used as a basis for mitigation. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 4.01.04, 1998)

16.15.360 Wetland detailed study special exemptions.

In addition to those exempted activities listed in SMC 16.15.090, the following activities shall not require a wetland detailed study, provided they are conducted using accepted best management practices:

(1) Conservation or preservation of soil, water, vegetation, fish or other wildlife. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 4.01.05, 1998)

16.15.370 Performance standards – Basic requirement.

A regulated wetland or its required buffer can only be altered if the wetland detailed study shows that the proposed alteration does not degrade the quantitative and qualitative functioning of the wetland, or any degradation can be adequately mitigated to protect the wetland function. Any proposed alteration approved pursuant to this section shall include mitigation necessary to mitigate the impacts of the proposed alteration on the wetland as described in this section and SMC 16.15.390 through 16.15.420. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 4.02.01, 1998)

16.15.380 Performance standards – Required buffers.

(1) Buffer Requirements. The following table establishes the standard buffer width that shall apply to each wetland category, as set forth in SMC 16.15.330, depending on the intensity of the potential land use on the upland side of the buffer and the habitat score of the wetland as determined on the 2014 Western Washington Rating Form, or as revised, completed by a qualified professional.

Table 2: Wetland Buffer Requirements*
		Intensity of Land Use on the Upland Side of the Buffer
Overall Wetland Rating	Wetland Characteristics	High1	Moderate2	Low3
Category I	Habitat score of 8 – 9 points	300 feet	225 feet	150 feet
Category I	Habitat score of 5 – 7 points	150 feet	110 feet	75 feet
Category I	Water quality score of 8 – 9 points and a habitat score of less than 5 points	100 feet	75 feet	50 feet
Category I	Wetlands that do not meet the characteristics described above for Category I wetlands	100 feet	75 feet	50 feet
Category II	Habitat score of 8 – 9 points	300 feet	225 feet	150 feet
Category II	Habitat score of 5 – 7 points	150 feet	110 feet	75 feet
Category II	Water quality score of 8 – 9 points and a habitat score of less than 5 points	100 feet	75 feet	50 feet
Category II	Wetlands that do not meet the characteristics described above for Category II wetlands	100 feet	75 feet	50 feet
Category III	Habitat score of 8 – 9 points	300 feet	225 feet	150 feet
Category III	Habitat score of 5 – 7 points	150 feet	110 feet	75 feet
Category III	Habitat score of 3 – 4 points	80 feet	60 feet	40 feet
Category IV	Scores for all 3 basic functions are less than 16 points	50 feet	40 feet	25 feet

1 High intensity land uses include commercial, industrial, and retail developments; institutional use; residential developments at more than one unit per acre; high intensity recreation areas (golf course, ball fields, etc.); and hobby farms.

2 Moderate intensity land uses include residential developments at less than one unit per acre; moderate intensity open space (parks with biking, jogging, etc.); and paved trails and utility corridors with maintenance roads.

3 Low intensity land uses include low intensity open space (hiking, bird-watching, preservation of natural resources, etc.); and unpaved trails and utility corridors without maintenance roads.

*Except as noted in this section for wetlands adjacent to slopes.

Wetland buffers shall be measured horizontally in a landward direction from the wetland edge, as delineated in the field, pursuant to the requirements of SMC 16.15.320. Where lands adjacent to a wetland display a continuous slope of 25 percent or greater, the buffer shall include such sloping areas. Where the horizontal distance of the sloping area is greater than the required standard buffer, the buffer shall be extended to a point 25 feet beyond the top of the bank of the sloping area. Any wetland created, restored or enhanced as compensation for approved wetland alterations shall also include the standard buffer required for the category of the created, restored, or enhanced wetland. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 4.02.02, 1998)

16.15.390 Compensatory mitigation.

As a condition of any development permit or approval which results in on-site loss or degradation of regulated wetlands and/or wetland buffers, or as an enforcement action pursuant to SMC 16.15.670 through 16.15.690, the town may require of the applicant compensatory mitigation to offset impacts resulting from the actions of the applicant or violator. The following standards shall apply:

(1) The mitigation shall be conducted on property which shall be protected and managed to avoid further loss or degradation. The applicant or violator shall provide for long-term preservation of the mitigation area.

(2) The ratios in the following table apply as a minimum to creation, restoration, or enhancement of wetlands which is in kind (that is, the same type of wetland), on site, and is accomplished prior to, or concurrent with, loss. The town shall have discretion to increase these ratios where mitigation is to occur off site or in other appropriate circumstances based on the recommendations of a wetlands report that includes best available science and is prepared by a qualified professional. The first number specifies the acreage of wetlands to be restored, created, or enhanced and the second specifies the acreage of wetlands lost:

Table 3
Wetland In-Kind (On-Site) Mitigation:
Restoration/Creation/Enhancement Area Ratios
Wetland Category	Wetland Created: Wetland Area Lost	Wetland Enhanced: Wetland Area Lost
Category I	6:1	24:1
Category II	3:1	12:1
Category III	2:1	8:1
Category IV	1.5:1	6:1

(3) Mitigation shall follow an approved mitigation plan and reflect the restoration/creation/enhancement ratios specified above.

(4) Mitigation sites shall be monitored for a minimum of five years.

(5) Mitigation shall be completed prior to, or concurrent with, wetland loss, or, in the case of an enforcement action, prior to continuation of the activity by the applicant or violator.

(6) On-site mitigation is generally preferred over off-site mitigation.

(7) Off-site mitigation allows replacement of wetlands away from the site on which the wetland has been impacted by a regulated activity. Off-site mitigation will be conducted in accordance with the restoration/creation ratios described above or through the purchase of credits from a certified wetland mitigation bank or approved in-lieu fee site. Off-site mitigation shall occur within the same drainage basin as the wetland loss occurs; provided, that Category IV wetlands may be replaced outside of the watershed if there is no reasonable alternative. In such instances, the stormwater storage function provided by Category IV wetlands must be provided for within the design of the development project. Off-site mitigation may be allowed only under one or more of the following circumstances:

(a) On-site mitigation is not feasible due to hydrology, soils, or other factors.

(b) On-site mitigation is not practical due to probable adverse impacts from surrounding land uses or would conflict with a federal, state or local public safety directive.

(c) Potential functional values at the site of the proposed restoration are greater than the lost wetland functional values.

(8) When the wetland to be altered is of a limited functional value and is degraded, mitigation shall be of the wetland community types needed most in the location of mitigation and those most likely to succeed with the highest functional value possible.

(9) Out-of-kind mitigation can be allowed when out-of-kind replacement will best meet the provisions of this section. For wetlands, out-of-kind mitigation shall replace wetland types and functions that will best meet watershed goals formally identified by the town, such as replacement of historically diminished wetland types.

(10) Where out-of-kind replacement is accepted, greater restoration/creation/enhancement ratios may be required.

(11) Construction of mitigation projects shall be timed to reduce impacts to existing wildlife and plants. Construction shall be timed to assure that grading and soil movement occur during the dry season and planting of vegetation shall be specifically timed to needs of the target species. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 4.03.01, 1998)

16.15.400 Innovative mitigation.

(1) The town may encourage, facilitate, and approve innovative wetland mitigation projects. Advance mitigation, mitigation banking or in-lieu fees are examples of alternative mitigation projects allowed under the provisions of this section whereby one or more applicant(s), or an organization with demonstrated capability, may undertake a mitigation project together if it is demonstrated that all of the following circumstances exist:

(a) Creation of one or several larger wetlands may be preferable to many small wetlands;

(b) The group demonstrates the organizational and fiscal capability to act cooperatively;

(d) There is a clear potential for success of the proposed mitigation at the identified mitigation site.

(2) Wetland Mitigation Banks.

(a) Credits from a wetland mitigation bank may be approved for use as compensation for unavoidable impacts to wetlands when:

(i) The bank is certified under state rules;

(ii) The administrator determines that the wetland mitigation bank provides appropriate compensation for the authorized impacts; and

(iii) The proposed use of credits is consistent with the terms and conditions of the certified bank instrument.

(b) Replacement ratios for projects using bank credits shall be consistent with replacement ratios specified in the certified bank instrument.

(c) Credits from a certified wetland mitigation bank may be used to compensate for impacts located within the service area specified in the certified bank instrument. In some cases, the service area of the bank may include portions of more than one adjacent drainage basin for specific wetland functions.

(3) In-Lieu Fee. To aid in the implementation of off-site mitigation, the city may develop an in-lieu fee program. This program shall be developed and approved through a public process and be consistent with federal rules, state policy on in-lieu fee mitigation, and state water quality regulations. An approved in-lieu fee program sells compensatory mitigation credits to permittees whose obligation to provide compensatory mitigation is then transferred to the in-lieu program sponsor, a governmental or nonprofit natural resource management entity. Credits from an approved in-lieu fee program may be used when subsections (3)(a) through (f) of this section apply:

(a) The approval authority determines that it would provide environmentally appropriate compensation for the proposed impacts.

(b) The mitigation will occur on a site identified using the site selection and prioritization process in the approved in-lieu fee program instrument.

(c) The proposed use of credits is consistent with the terms and conditions of the approved in-lieu fee program instrument.

(d) Land acquisition and initial physical and biological improvements of the mitigation site must be completed within three years of the credit sale.

(e) Projects using in-lieu fee credits shall have debits associated with the proposed impacts calculated by the applicant’s qualified wetland scientist using the method consistent with the credit assessment method specified in the approved instrument for the in-lieu fee program.

(f) Credits from an approved in-lieu fee program may be used to compensate for impacts located within the service area specified in the approved in-lieu fee instrument. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 4.03.02, 1998)

16.15.410 Mitigation requirement exceptions.

Requirements for compensatory mitigation do not apply when a wetland alteration is intended exclusively for the enhancement or restoration of an existing regulated wetland and the proposal will not result in a loss of wetland function and value, subject to the following conditions:

(1) The enhancement or restoration project shall not be associated with a development activity.

(2) An enhancement or restoration plan shall be prepared and approved as described in SMC 16.15.420. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 4.03.03, 1998)

16.15.420 Restoration.

(1) Restoration is required when a wetland or its buffer has been altered in violation of this chapter. The following minimum performance standards shall be met for the restoration of a wetland; provided, that if it can be demonstrated by the applicant that greater functional and habitat values can be obtained, these standards may be modified:

(a) The original wetland configuration should be replicated, including depth, width, and length at the original location.

(b) The original soil types and configuration shall be replicated.

(c) The wetland and buffer areas shall be replanted with native vegetation which replicates the original in species, sizes, and densities.

(d) The original functional values shall be restored, including water quality and wildlife habitat functions.

(e) Required replacement ratios are shown in the table located in SMC 16.15.390.

(2) A restoration plan shall be prepared and approved prior to commencement of restoration work. Such a plan shall be prepared by a qualified wetland biologist and shall describe how the actions proposed meet the minimum requirements described above. The town shall, at the applicant’s or violator’s expense, seek expert advice in determining the adequacy of the plan. Inadequate plans shall be returned to the applicant or violator for revision and resubmittal. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 4.03.04, 1998)

Article V. Geologically Hazardous Areas

16.15.430 Review.

It is the policy of the town of Skykomish to prohibit, restrict, or otherwise control development in areas which are subject to danger from geologic hazards and to similarly control development that may increase the risk of danger to other properties from geologic hazards. For purposes of this chapter, geologically hazardous areas include the following: erosion hazard areas, landslide hazard areas, seismic hazard areas, mine hazard areas, and volcanic hazard areas. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 5.01, 1998)

16.15.440 Designation.

(1) Geologically hazardous areas pose a threat to the health and safety of residents when incompatible development is sited in areas of significant hazard. Such incompatible development may not only place itself at risk, but also may increase the hazard to surrounding development and use. Some geologic hazards can be reduced or mitigated by engineering, design, or modified construction or mining practices so that the risks to health and safety are acceptable. When technology cannot reduce the risks to acceptable levels, development in the hazard area is best avoided.

(2) Geologically hazardous areas include all of those areas within the town of Skykomish which are susceptible to significant erosion, landslide, volcanic hazards, seismic hazards, and mine collapse hazards. All areas within the town of Skykomish meeting the criteria described in SMC 16.15.450 for known or suspected risk or unknown risk, regardless of the presence or lack of any formal identification as such, are hereby designated as critical areas and are subject to the provisions of this chapter. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 5.01.01, 1998)

16.15.450 Classification.

Subsections (1) through (5) of this section list the criteria by which areas are classified as geologically hazardous areas. All areas within the town of Skykomish shall be classified according to the following categories for each geologic hazard type:

Classification	Documentation and Data Sources
Known or Suspected Risk	Documentation or projection of the hazard by a qualified expert exists.
No Risk	Documentation or projection of the lack of hazard by a qualified expert exists.
Risk Unknown	Data are not available to determine the presence or absence of a geologic hazard.

(1) Erosion Hazard Areas. Erosion hazard critical areas are those sites with soil types designated by the United States Department of Agriculture Natural Resources Conservation Service (NRCS) as possessing a “moderate to severe,” “severe,” or “very severe” erosion hazard. This classification is based on both soil type and slope.

(2) Landslide Hazard Areas. Landslide hazard areas are areas potentially subject to landslides based on a combination of geologic, topographic, and hydrologic factors. They include areas susceptible because of any combination of bedrock, soil, slope (gradient), slope aspect, structure, hydrology, or other factors. Examples of these may include, but are not limited to, those areas meeting any of the following criteria:

(a) Areas with slopes of 40 percent or greater and with a vertical relief of 10 or more feet;

(b) Areas with slopes steeper than 15 percent on hillsides intersecting geologic contacts with a relatively permeable sediment overlying a relatively impermeable sediment or bedrock where springs or groundwater seepage is present;

(c) Areas with slopes that are parallel or subparallel to planes of weakness, such as bedding planes, joint systems, and fault planes, in subsurface materials;

(d) Areas with slopes having gradients steeper than 80 percent subject to rockfall during seismic shaking;

(e) Alluvial fans or canyon bottoms presently or potentially subject to inundation by debris flows or catastrophic flooding;

(f) Areas that have shown movement during the Holocene epoch or which are underlain or covered by wastage debris of this epoch;

(g) Areas that show evidence of or risk from snow avalanches;

(h) A “severe” limitation for building site development due to slope conditions according to the USDA Natural Resources Conservation Service;

(i) Areas of historic failure such as areas designated as Quaternary slumps, earthflows, mudflows, lahars, or landslides on maps or technical reports published by the United States Geological Survey (USGS) such as topographic or geologic maps, or the Geology and Earth Sciences Division of the Washington Department of Natural Resources, or other documents authorized by government agencies;

(j) Areas potentially unstable because of rapid stream incision or stream bank erosion.

(3) Flood Hazard Areas. Areas potentially unstable as a result of rapid stream incision, stream bank erosion, and undercutting by wave action shall be addressed as a flood hazard consistent with Chapter 16.10 SMC, Flood Damage Prevention.

(4) Seismic Hazard Areas. Seismic hazard areas include those areas that are subject to severe risk of damage from earthquake-induced groundshaking or soil liquefaction and soil strength loss. These areas include those lands designated as alluvium and recessional outwash surficial geologic units and areas located on or adjacent to a Holocene fault line. References for these criteria include those described in subsection (2) of this section and other documents authorized by government agencies.

(5) Mine Hazard Areas. Mine hazard areas are areas directly underlain by, or affected by, mine workings such as adits, gangways, tunnels, drifts, or air shafts and those areas of probable sink holes, gas releases, or subsidence due to mine workings. Factors that should be considered include proximity to development, depth from ground surface to the mine working, and geologic material.

(6) Volcanic Hazard Areas. Volcanic hazard areas are areas subject to pyroclastic flows, lava flows, debris avalanche, inundation by debris, lahars, mudflows, or related flooding resulting from volcanic activity.

(7) Geologically hazardous areas shall also include areas determined by the town to be susceptible to other geological events including mass wasting, debris flows, rock falls, and differential settlement. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 5.01.02, 1998)

16.15.460 Indicators.

(1) The following indicators shall be used by the town to determine the need for a detailed study:

(a) Listing in the town of Skykomish critical areas map folio as either known or suspected risk for erosion, landslide, seismic, or mine hazard shall require the preparation of a detailed study for that hazard type; or

(b) Activities in an area classified in the town of Skykomish critical areas map folio as unknown risk for erosion, landslide, or earthquake hazard shall require the preparation of a detailed study for that hazard type if any of the following are identified by the applicant or town:

(i) Documentation, through any of the references listed in this chapter or its Appendix or other reasonable source of any of the classification criteria listed above in all subsections of SMC 16.15.450;

(ii) A finding by a qualified geologist that any of the following exist: evidence of past significant events of the hazard in question on or adjacent to the site, the presence of necessary and sufficient factors for events of the hazard in question on or adjacent to the site, or reasonable uncertainty concerning the hazard and the potential for significant risk to or from the proposed activity; or

(iii) A reasonable belief by the town that a geologic hazard may exist. Such reasonable belief shall be supported by a site visit and subsequent consultation with a qualified geologist.

(2) Due to the universal and low nature of volcanic risk in the town of Skykomish, a detailed study of volcanic hazard areas is not required for any activity. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 5.01.03, 1998)

16.15.470 Detailed study requirements.

This section describes the minimum requirements for a geologic hazard area detailed study.

(1) Basic Requirements. If a geologic hazard critical area detailed study is required, it shall meet the following general requirements:

(a) The detailed study shall be prepared by a professional engineer, licensed in the state of Washington, with experience analyzing geologic, hydrologic, and groundwater flow systems; or by a geologist who earns his or her livelihood from the field of geology and/or geotechnical analysis, with experience analyzing geologic, hydrologic and groundwater flow systems, who has received a relevant degree from an accredited four-year institution of higher education. Evidence of these qualifications shall be provided with the detailed study.

(b) The detailed study shall contain a map, of a scale no smaller than one inch equals 200 feet, of the site and the extent of the geologic hazard area as determined by the criteria in SMC 16.15.460.

(c) An assessment of the geologic characteristics and engineering properties of the soils, sediments, and/or rock of the subject property and potentially affected adjacent properties, and a review of the site history regarding landslides, erosion, and prior grading. Soils analysis shall be accomplished in accordance with accepted taxonomic classification systems in use in the region. A description of the vulnerability of the site to seismic events shall be included. Documentation of data and methods shall be included.

(d) A geotechnical analysis including a detailed description of the project, its relationship to the geologic hazard(s), and its potential impact upon the hazard area, the subject property and affected adjacent properties shall be included.

(e) The mitigation plan shall be prepared by a professional engineer or geologist under the supervision of a professional engineer and include a discussion on how the project has been designed to avoid and minimize the impacts discussed in the geotechnical analysis (see the mitigation standards provided in SMC 16.15.240 through 16.15.280). The plan shall make a recommendation for the minimum building setback from any geologic hazard based upon the geotechnical analysis. The plan shall also address the potential impact of mitigation on the hazard area, the subject property and affected adjacent properties.

(f) Where more than one geologic hazard critical area is within, adjacent to, impacts or is impacted by the activity site, then only one detailed study is required to be completed for geologic hazard critical area review of the activity. The comprehensive report shall meet all of the requirements of each critical area type but may present a unified mitigation plan.

(g) Where a valid geotechnical report has been prepared within the last five years for a specific site, and where the proposed land use activity and surrounding site conditions are unchanged, said report may be incorporated into the detailed study. The applicant shall submit a geotechnical assessment detailing any changed environmental conditions associated with the site.

(2) Erosion and Landslide Hazard Areas. In addition to the basic requirements (subsection (1) of this section), a detailed study for an erosion hazard or landslide hazard area must also meet the following requirements:

(a) The map shall depict the height of slope, slope gradient, and cross-section of the site. The site plan shall also include the location of springs, seeps, or other surface expressions of groundwater. The site plan shall also depict any evidence of surface or stormwater runoff.

(b) A description of load intensity, including surface and groundwater conditions, public and private sewage disposal systems, fills and excavations and all structural development.

(c) An estimate of slope stability and the effect construction and placement of structures will have on the slope over the estimated life of the structure.

(d) An estimate of the bluff retreat rate which recognizes and reflects potential catastrophic events such as seismic activity or a 100-year storm event.

(e) An assessment describing the extent and type of vegetative cover.

(f) The geotechnical analysis shall specifically include:

(i) Slope stability studies and opinion(s) of slope stability;

(ii) Proposed angles of cut and fill slopes and site grading requirements;

(iii) Structural foundation requirements and estimated foundation settlements;

(iv) Soil compaction criteria;

(v) Proposed surface and subsurface drainage;

(vi) Lateral earth pressures;

(vii) Vulnerability of the site to erosion;

(viii) Suitability of on-site soil for use as fill; and

(ix) Building limitations.

(g) Mitigation proposals shall include the location and methods of drainage, surface water management, locations and methods of erosion control, a vegetation management and/or restoration plan and/or other means for maintaining long-term stability of slopes.

(3) Seismic Hazard Areas. In addition to the basic requirements (subsection (1) of this section), a detailed study for a seismic hazard critical area shall also meet the following requirements:

(a) The site map shall show all known and mapped faults in the project vicinity.

(b) The geotechnical analysis shall include a complete discussion of the potential impacts of seismic activity reasonably probable on the site (for example, forces generated and fault displacement).

(4) Mine Hazard Areas. In addition to the basic requirements (subsection (1) of this section), a detailed study for a mine hazard critical area shall also meet the following requirements:

(a) The site plan shall delineate the existence of mine workings directly underlying, adjacent to or abutting the site, or nearby mine workings which may impact the site; and

(b) The geotechnical analysis shall include a discussion of the potential for subsidence on the site.

(5) Volcanic Hazard Areas. A detailed study of volcanic hazard areas is not required for any activity. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 5.01.04, 1998)

16.15.480 Performance standards.

This section describes the minimum requirements for geologic hazard area performance standards.

(1) Basic Requirements.

(a) Alteration of geologic hazard critical areas is permitted only if the development proposal can be designed so that the hazard to the project and any increase of hazard to adjacent property is eliminated or mitigated and the development proposal on that site is certified as safe by a geotechnical engineer licensed in the state of Washington.

(b) All proposals involving excavations and placement of fills shall be subject to structural review under Chapter 33, Site Work, Demolition and Construction, of the adopted building code, as adopted by the town of Skykomish, and Chapter 15.20 SMC, Clearing and Grading.

(c) Critical facilities shall not be sited within designated geologically hazardous areas (exception: volcanic hazard areas).

(2) Erosion and Landslide Hazard Areas. Activities on sites containing landslide or erosion hazards shall also meet the following requirements:

(a) Alterations of the buffer and/or geologic hazard area may only occur for activities meeting the following criteria:

(i) No reasonable alternative exists; and

(ii) A geotechnical report is submitted and certifies that:

(A) The development will not significantly increase surface water discharge or sedimentation to adjacent properties beyond pre-development conditions; and

(B) The development will not decrease slope stability on adjacent properties; and

(b) A temporary erosion and sedimentation control plan prepared in accordance with the requirements of the town of Skykomish surface water management plan and the Stormwater Management Manual for the Puget Sound Basin.

(c) A drainage plan for the collection, transport, treatment, discharge and/or recycling of water in accordance with the requirements of the town of Skykomish surface water management plan and the Stormwater Management Manual for the Puget Sound Basin.

(d) Surface drainage shall not be directed across the face of a landslide hazard (including riverine bluffs or ravines). If drainage must be discharged from the hazard area into adjacent waters, it shall be collected above the hazard and directed to the water by tight line drain and provided with an energy-dissipating device at the point of discharge.

(e) All infiltration systems, such as stormwater detention and retention facilities, and curtain drains utilizing buried pipe or French drains, are prohibited in landslide hazard areas and their buffers unless a geotechnical report indicates such facilities or systems or the failure of the same will not affect slope stability and the systems are designed by a licensed civil engineer. The engineer shall also certify that the system and/or facilities are installed as designed.

(f) A minimum standard buffer width of 30 feet shall be established from the top, toe, and all edges of landslide and erosion hazard areas. Existing native vegetation shall be maintained in accordance with mitigation recommendations within the buffer area. The buffer may be reduced to a minimum of 10 feet when an applicant demonstrates to the town that the reduction will adequately protect the proposed development, adjacent developments and uses and the subject critical area. The buffer may be increased by the town for development adjacent to a river bluff or ravine, or in other areas that circumstances may warrant, where the town determines a larger buffer is necessary to prevent risk of damage to proposed and existing development (as in the case where the area potentially impacted by a landslide exceeds 30 feet).

(g) On-site sewage disposal systems, including drain fields, shall be prohibited within landslide and erosion hazard areas and related buffers.

(h) Development designs shall meet the following basic requirements unless it can be demonstrated that an alternative design which deviates from one or more of these standards provides greater long-term slope stability while meeting all other criteria of this chapter. The requirement for long-term slope stability shall exclude designs which require periodic maintenance or other actions to maintain their level of function. The basic development design standards are:

(i) Structures and improvements shall be clustered to retain as much open space as possible and to preserve the natural topographic features of the site.

(ii) Structures and improvements shall conform to the natural contour of the slope and foundations shall be tiered where possible to conform to existing topography.

(iii) Structures and improvements shall be located to preserve the most critical portion of the site and its natural landforms and vegetation.

(iv) The use of retaining walls which allow the maintenance of existing natural slope area is preferred over graded artificial slopes.

(v) All development shall be designed to minimize impervious lot coverage.

(i) Clearing is only allowed from April 1st to November 1st, with the exception of clearing of up to 15,000 square feet on individual lots, which is allowed throughout the year.

(j) Only that clearing necessary to install temporary sedimentation and erosion control measures shall occur prior to clearing for roadways or utilities.

(k) Clearing limits for roads, water, wastewater and stormwater utilities and temporary erosion control facilities shall be marked in the field and approved by the town prior to any alteration of existing native vegetation.

(l) The authorized clearing for roads and utilities shall be the minimum necessary to accomplish project-specific engineering designs and shall remain within approved rights-of-way.

(m) All trees and understory outside of areas approved for clearing shall be retained; provided, that understory damaged during approved clearing operations may be pruned or replaced.

(3) Seismic Hazard Areas. Activities on sites containing seismic hazards shall also meet the following requirements:

(a) Mitigation is implemented which reduces the seismic risk to a level equivalent to that which the activity would experience if it were not located in a seismic hazard area.

(b) Seismic Hazard Areas. Structural development proposals shall meet all applicable provisions of the 2015 International Building Code, as adopted by the town of Skykomish.

(c) No residential structures or critical facilities shall be located on a Holocene fault line as indicated by USGS investigative maps and studies.

(4) Mine Hazard Areas. Activities on sites containing mine hazards shall also meet the following requirements:

(a) Mitigation is implemented which reduces the risk from mine hazards to a level equivalent to that which the activity would experience if it were not located in a mine hazard area. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 5.02.01, 1998)

16.15.490 Long-term mitigation and restoration standards.

(1) The mitigation plan shall specifically address how the activity maintains or reduces the preexisting level of risk to the site and adjacent properties on a long-term basis (equal to or exceeding the projected lifespan of the activity or occupation). Proposed mitigation techniques shall be considered to provide long-term hazard reduction only if they do not require periodic maintenance or other actions to maintain their function.

(2) Mitigation may also be required to avoid any increase in risk above the preexisting conditions following abandonment of the activity.

(3) Any restoration required through enforcement actions pursuant to Article VIII of this chapter shall meet the same long-term hazard reduction standards. In the case of restoration, “long-term” shall be defined as the equivalent of natural function. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 5.03.01, 1998)

Article VI. Fish and Wildlife Habitat Conservation Areas

16.15.500 Review.

Many land use activities can impact the habitats of fish and wildlife. Where areas of critical fish and wildlife habitat are subject to development pressure, all proposed activities in proximity to the habitats should be evaluated to determine whether the proposed land use is compatible with the habitat. It is the policy of the town of Skykomish that critical fish and wildlife habitats be preserved so that isolated populations of species are not created and that habitat fragmentation is avoided. The natural geographic distribution of critical fish and wildlife habitat should be maintained. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 6.01, 1998)

16.15.510 Classification and designation.

Fish and wildlife habitat conservation areas shall include the following:

(1) Areas with which state or federally designated endangered, threatened, and sensitive species have a primary association;

(2) State priority habitats and areas associated with state priority species, designated by the State Department of Fish and Wildlife, including, but not limited to, riparian areas associated with waterways;

(3) Naturally occurring ponds under 20 acres and their submerged aquatic beds that provide fish or wildlife habitat; naturally occurring ponds include those artificial ponds intentionally created from dry areas in order to mitigate impacts to ponds. Naturally occurring ponds do not include ponds deliberately designed and created from dry sites, such as canals, detention facilities, wastewater treatment facilities, farm ponds, temporary construction ponds, and landscape amenities, unless such artificial ponds were intentionally created for mitigation;

(4) Waters of the state, including:

(a) Skykomish River;

(b) Maloney Creek;

(c) Lakes, rivers, ponds, streams, inland waters, underground waters, salt waters, and all other surface waters and watercourses within the jurisdiction of the state of Washington, as classified in WAC 222-16-031;

(5) State natural area preserves and natural resource conservation areas; and

(6) Habitat areas of local importance as determined by resolution of the town council, including those habitats and species that, due to their population status or sensitivity to habitat manipulation, warrant protection through possible retention or recovery of connectivity of habitat features. The map and species references indicated are intended to serve only as a guide during development review. In all cases, actual presence or absence for the listed species or habitat shall prevail. All areas within the town of Skykomish meeting one or more of these criteria, regardless of the presence or lack of any formal identification as such, are hereby designated as critical areas and are subject to the provisions of this chapter. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 6.01.01, 1998)

16.15.520 Rating.

Wildlife habitat areas shall be rated as primary or secondary according to the criteria in this section.

(1) Primary Habitats. Primary habitats are those habitat areas which are valuable to wildlife and support a wide variety of species due to an undisturbed nature, diversity of plant species, and structure, presence of water, or size, location or seasonal importance and which meet any of the following qualifying criteria:

(a) The documented presence of species or designated critical habitat listed by the federal government or state of Washington as endangered, threatened, or sensitive.

(b) Those rivers identified as “shorelines of the state” under the town of Skykomish shoreline master program, and streams within the shoreline jurisdiction.

(2) Secondary Habitats. Secondary habitats are those which are valuable to wildlife and support a wide variety of species due to an undisturbed nature, diversity of plant species, and structure, presence of water, or size, location or seasonal importance, but do not meet any of the qualifying criteria listed in subsection (1) of this section. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 6.01.02, 1998)

16.15.530 Indicators.

A detailed study shall be required for any activity which contains or is within 200 feet of a fish and wildlife habitat area. Due to the sensitive nature of certain species, the applicant shall notify the town if the proposed activity will occur within 660 feet (one-eighth of a mile) of a fish and wildlife habitat area; the town may then contact appropriate agencies and determine if a detailed study should be prepared, based on the sensitivity of the site. The following indicators shall be used by the town to determine the presence of such an area and the need for a detailed study:

(1) Listing in the town’s critical areas map folio as a fish and wildlife habitat area; or

(2) Documentation, through any of the references listed in the Appendix or other reasonable source, of any of the classification criteria listed in SMC 16.15.510; or

(3) A finding by a qualified fish and wildlife biologist that appropriate habitat conditions exist that would meet one or more of the classification criteria listed in SMC 16.15.510; or

(4) A reasonable belief by the town that fish and wildlife habitat may exist. Such reasonable belief shall be supported by a site visit. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 6.01.03, 1998)

16.15.540 Detailed study requirements.

If a fish and wildlife habitat area detailed study is required, it shall meet the following requirements:

(1) Completion by a qualified fish and wildlife biologist with expertise in assessing the relevant species and habitats. Evidence of qualifications shall be provided with the detailed study.

(2) A site plan and map of a scale no smaller than one inch equals 200 feet indicating all fish and wildlife habitat critical areas, as determined by the town’s critical areas map folio and the criteria in SMC 16.15.510, falling within 200 feet of the subject property. This site plan may be prepared by the applicant subject to review by the qualified fish and wildlife biologist. The extent and boundaries of the habitat shall be determined by the qualified fish and wildlife biologist.

(3) A habitat description including a habitat rating as described in SMC 16.15.520 and a statement of values and functions shall provide information on the species in question and the associated plant and animal communities. Complete species and special habitat feature lists shall be included.

(4) A regulatory analysis including a discussion of any federal, state, tribal, and/or local requirements or special management recommendations which have been developed for species and/or habitats located on the site.

(5) The proposed mitigation plan shall include a discussion on how the activity has been mitigated to avoid and minimize adverse impacts to the habitat, and shall follow the general mitigation plan requirements described in SMC 16.15.240 through 16.15.280.

(6) A statement of management and maintenance practices, including a discussion of ongoing maintenance practices that will assure protection of all fish and wildlife habitat conservation areas on site after the project has been completed. This section should include a discussion of proposed monitoring criteria, methods, and schedule.

(7) Where nonfish species have been identified that are classified as endangered or threatened by the federal government or Washington Department of Fish and Wildlife, the applicant shall provide a special study identifying the required habitat and recommending appropriate buffers based on the stAte Department of Fish and Wildlife priority habitat and species management recommendations.

(8) Where other habitats identified as fish and wildlife areas have been identified, the applicant shall provide a special study identifying the required habitat and recommending appropriate buffers based on the following respective recommendations:

(a) For areas with endangered, threatened, and sensitive species, protective measures recommended shall comply with the Washington Department of Fish and Wildlife priority habitat and species management recommendations; and

(b) For naturally occurring ponds under 20 acres, protective provisions that are consistent with the wetland performance standards of SMC 16.15.370 and 16.15.380.

(9) If, in the future, the town chooses to designate, along with the state, a state natural area preserve and/or natural resource conservation area within Skykomish, the town shall coordinate with the relevant agencies to determine appropriate measures to be taken to ensure protection of these areas, including amending this chapter, as necessary.

(10) Habitats or species that have been identified as priority species or priority habitats by the Washington Department of Fish and Wildlife Priority Habitats and Species Program should not be reduced and will be preserved through regulation, acquisition, incentives and other techniques. Habitats and species of local importance will also be protected in this manner. The town will determine which habitats and species are of local importance. At such time as the town decides to identify and designate habitats and species of local importance, criteria for designation shall be developed and adopted into this chapter. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 6.01.04, 1998)

16.15.550 Performance standards – Wetland habitats.

All habitat sites containing wetlands shall conform to the wetland development performance standards set forth in SMC 16.15.370 and 16.15.380. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 6.02.01, 1998)

16.15.560 Performance standards – Riparian habitats.

(1) Buffer Requirements. Native vegetation standard buffers for activities adjacent to streams within fish and wildlife habitat conservation areas shall be maintained. Buffer widths shall be based on the extent of prior modification of the stream channel. Channel banks are all classified in one category and mapped in the map folio in the Appendix. Riparian buffers are determined by whether or not a salmonid habitat is present. The buffer distance from the ordinary high water mark shall be as follows:

Table 4
Riparian Buffer Requirements
Stream	Minimum Buffer Width
Skykomish River, Maloney Creek and other perennial streams supporting salmonid populations	100 feet
All other streams	75 feet
Riparian Buffer Requirements: Adjacent Preexisting Development Exceptions
Stream	Minimum Buffer Width
Skykomish River, Maloney Creek and other perennial streams supporting salmonid populations where the bank is classified as unmodified	60 feet
All other streams where the bank is classified as unmodified	45 feet

(Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 6.02.02, 1998)

16.15.570 Performance standards – Bald eagle habitat.

Development projects likely to harm bald eagle nests or roosts are required to abide by the National Bald Eagle Management Guidelines, and demonstrate that a U.S. Fish and Wildlife Service (USFWS) permit is not required by using the USFWS online self-certification tool or, if a USFWS permit is required, demonstrate that it has been obtained. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 6.02.03, 1998)

16.15.575 Performance standards – Anadromous fish.

(1) All activities, uses, and alterations proposed to be located in water bodies used by anadromous fish or in areas that affect such water bodies shall give special consideration to the preservation and enhancement of anadromous fish habitat, including, but not limited to, adhering to the following standards:

(a) Activities shall be timed to occur only during the allowable work window as designated by the Department of Fish and Wildlife for the applicable species;

(b) An alternative alignment or location for the activity is not feasible;

(c) The activity is designed so that it will not degrade the functions or values of the fish habitat or other critical areas;

(d) Shoreline erosion control measures shall be designed to use bioengineering methods or soft armoring techniques according to an approved critical area report; and

(e) Any impacts to the functions or values of the habitat conservation area are mitigated in accordance with an approved critical area report.

(2) Structures that prevent the migration of salmonids shall not be allowed in the portion of water bodies currently or historically used by anadromous fish.

(3) Fills, when authorized by the adopted shoreline master program, shall not adversely impact anadromous fish or their habitat or shall mitigate any unavoidable impacts, and shall only be allowed for a water-dependent use. (Ord. 466 § 1 (Exh. A), 2019)

16.15.580 Wetland habitat.

All habitat sites containing wetlands shall conform to the wetland mitigation and restoration provisions set forth in SMC 16.15.390 through 16.15.420. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 6.03.01, 1998)

Article VII. Critical Aquifer Recharge Areas

16.15.590 Review.

It is the policy of the town of Skykomish to protect important water supplies from additional degradation or depletion originating from land use activities. Due to the exceptional vulnerability and susceptibility of the critical aquifer recharge areas to further contamination, it is the intent of this section to safeguard groundwater resources in the aquifer system from hazardous substance and hazardous waste pollution by controlling or abating future pollution from new land uses or activities. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 7.01, 1998)

16.15.600 Designation.

Critical aquifer recharge areas (CARAs) are those areas with a critical recharging effect on aquifers used for potable water as defined by WAC 365-190-030(2). CARAs include:

(1) Those aquifer recharge areas that have prevailing geologic conditions associated with infiltration rates that create a high potential for contamination of groundwater resources or contribute significantly to the replenishment of groundwater;

(2) Wellhead protection areas pursuant to Chapter 246-290 WAC;

(3) Sole source aquifers as designated by the U.S. Environmental Protection Agency pursuant to the Federal Safe Drinking Water Act;

(4) Areas designated for special protection pursuant to a groundwater management program, Chapters 90.44, 90.48 and 90.54 RCW and Chapters 173-100 and 173-200 WAC;

(5) Areas overlying unprotected aquifers. Unprotected aquifers are those aquifers which are neither confined nor protected by overlying surface or subsurface impermeable layers. Occurrences of such aquifers shall be identified through any existing competent hydrogeologic study including, but not limited to, those listed in SMC 16.15.620, Indicators;

(6) Areas with no identified unprotected aquifers but possessing the following characteristics:

(a) Slopes less than 15 percent; and

(b) Coarse alluvium or sand and gravel in the soil profile and no known impermeable layers;

(7) Those critical aquifer recharge areas delineated by a hydrogeologic study prepared in accordance with the State Department of Ecology guidelines;

(8) Susceptible groundwater management areas as designated pursuant to Chapter 173-100 WAC;

(9) Special protection areas as defined by WAC 173-200-090;

(10) Those aquifer recharge areas meeting the criteria for susceptibility or vulnerability established by the State Department of Ecology;

(11) In considering aquifer designations or soil classifications that have been mapped, any project area located within 200 feet of the mapped area shall be treated as if it is within the mapped area;

(12) All areas within the town of Skykomish meeting these criteria, regardless of the presence or lack of any formal identification as such, are hereby designated as critical areas and are subject to the provisions of this chapter. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 7.01.01, 1998)

16.15.610 Classification.

Critical aquifer recharge areas are classified as high, moderate, or low significance critical aquifer recharge areas according to the following criteria:

(1) High Significance Critical Aquifer Recharge Areas. High significance critical aquifer recharge areas are areas with slopes of less than 15 percent that are underlain by coarse alluvium or sand and gravel.

(2) Moderate Significance Critical Aquifer Recharge Areas. Moderate significance critical aquifer recharge areas are:

(a) Areas with slopes of less than 15 percent that are underlain by fine alluvium, silt, clay, glacial till, or deposits from the Electron Mudflow; and

(b) Areas with slopes of 15 percent to 30 percent that are underlain by sand and gravel.

(3) Low Significance Critical Aquifer Recharge Areas. Low significance critical aquifer recharge areas are:

(a) Areas with slopes of 15 percent to 30 percent that are underlain by silt, clay, or glacial till; and

(b) Areas with slopes greater than 30 percent. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 7.01.02, 1998)

16.15.620 Indicators.

(1) The following information resources shall be utilized along with other documentation where noted:

(a) Studies from the United States Geological Survey;

(b) Town of Skykomish Wastewater Facility Plan, Skykomish, Washington (R.W. Beck and Associates, May 1992);

(2) Requirements for High Significance Critical Aquifer Recharge Area. A critical aquifer recharge area detailed study shall be required for any activity occurring on or adjacent to a site that is, or contains, a high significance critical aquifer recharge area if the activity involves one or more of the following uses:

(a) Hazardous substance processing or handling, including aboveground and underground storage tanks.

(b) Chemical and hazardous waste treatment and storage facilities.

(d) Landfills and solid waste handling and recycling facilities.

(e) Vehicle repair, servicing, or washing.

(f) Junk yards and salvage yards.

(g) Sawmills and wood treatment facilities.

(h) Spreading or injection of reclaimed water.

(i) Mining, including, but not limited to, metals and hard rock mining and sand and gravel mining.

(j) Uses that result in greater than 50 percent impervious surface area.

(k) Activities that would significantly reduce the recharge to aquifers currently or potentially used as a potable water source.

(l) Activities that would significantly reduce the recharge to aquifers that are a source of significant baseflow to a regulated stream. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 7.01.03, 1998)

16.15.630 Critical aquifer recharge area (CARA) detailed study.

When required as described in SMC 16.15.610, a critical aquifer recharge area detailed study shall meet the following requirements:

(1) The detailed study shall be prepared by a qualified consultant with experience in preparing hydrogeologic assessments. Evidence of these qualifications shall be provided with the detailed study.

(2) The detailed study shall contain a map, of a scale no smaller than one inch equals 200 feet, of the site and the extent of the high significance critical aquifer recharge area as determined by the criteria in SMC 16.15.610.

(3) The detailed study shall contain a hydrogeologic assessment including, at a minimum:

(a) Information sources;

(b) Geologic setting;

(c) Background water quality data for the area to be affected by the proposed activity compiled for at least the previous five-year period;

(d) Location of, and depth to, water tables;

(e) Recharge potential of the facility site;

(f) Groundwater flow direction and gradient;

(g) Currently available data on wells within 1,300 feet of the site;

(h) Currently available data on springs within 1,300 feet of the site;

(i) Surface water locations within 1,300 feet of the site and their recharge potential;

(j) Water source supply to the activity (e.g., high-capacity well);

(k) Any sampling schedules necessary;

(l) Discussion of the effects of the proposed project on the groundwater resource, including best management practices to be utilized, groundwater monitoring provisions, and a spill plan that identifies potential failures, impacts, and responses; and

(m) Other information as may be required by the town.

(4) The detailed study shall include a mitigation plan detailing how the activity will offset any impact on the resource and control risk of contamination to the aquifer. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 7.01.04, 1998)

16.15.640 Detailed study special exemptions.

In addition to the exemptions listed in SMC 16.15.090, the following uses shall be exempt from the requirement to prepare a critical aquifer recharge area detailed study:

(1) Sewer lines and appurtenances. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 7.01.05, 1998)

16.15.650 Performance standards – Basic requirements.

(1) Any activity listed in SMC 16.15.620, Indicators, may only be permitted in a high significance critical aquifer recharge area if the detailed study documents that the activity does not pose a threat to the aquifer system and that the proposed activity will not cause contaminants to enter the aquifer.

(2) All activities located in a critical aquifer recharge area shall minimize the creation of impervious surfaces to the extent practicable without creating a greater risk to the critical aquifer recharge area. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 7.02.01, 1998)

16.15.660 Performance standards – Storage tanks.

(1) All development activities located in a critical aquifer recharge area which involve a storage tank must conform to the following requirements. The following requirements shall be enforced by the person or agent acting in the capacity of fire marshal for the town.* The Washington Department of Ecology also regulates and authorizes permits for underground storage tanks (Chapter 173-360 WAC).

(2) Underground Tanks. All new underground storage facilities used or to be used for the underground storage of hazardous substances or hazardous wastes shall be designed and constructed so as to:

(a) Prevent releases due to corrosion or structural failure for the operational life of the tank;

(b) Be protected against corrosion, constructed of noncorrosive material, steel-clad with a noncorrosive material, or designed to include a secondary containment system to prevent the release or threatened release of any stored substances; and

(3) Aboveground Tanks.

(a) No new aboveground storage facility or part thereof shall be fabricated, constructed, installed, used or maintained in any manner which may allow the release of a hazardous substance to the ground, groundwaters, or surface waters within a critical aquifer recharge area.

(b) No new aboveground tank or part thereof shall be fabricated, constructed, installed, used, or maintained without having constructed around or under it an impervious containment area enclosing or underlying the tank or part thereof.

(c) A new aboveground tank will require a secondary containment system either built into the tank structure or a dike system built outside the tank for all tanks located within a critical aquifer recharge area. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 7.02.02, 1998)

*Skykomish currently contracts with King County to provide the services of a fire marshal, including regulation and authorization of permits for underground storage tanks, pursuant to the 2015 International Fire Code.

Article VIII. Administration

16.15.670 Site inspections and investigations.

The town or the town’s designee is authorized to make site inspections and take such actions as are necessary to enforce this chapter. A town representative shall present proper credentials and make a reasonable effort to contact any property owner before entering onto private property. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 8.01.01, 1998)

16.15.680 Enforcement actions.

Activities found to be in noncompliance with the performance standards and mitigation conditions issued as part of the activity approval are subject to enforcement actions necessary to bring the activity into compliance with this chapter. The town shall have the authority to order restoration, rehabilitation or replacement measures at the owner’s or other responsible party’s expense to compensate for violation of provisions of this chapter which results in the destruction or degradation of critical area lands. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 8.01.02, 1998)

16.15.690 Penalties.

(1) Any person, party, firm, corporation, or other legal entity convicted of violating any of the provisions of this chapter shall be guilty of a misdemeanor. Each day or portion of a day during which a violation of this chapter is continued, committed or permitted shall constitute a separate offense. Any development carried out contrary to the provisions of this chapter shall constitute a public nuisance and may be enjoined as provided by the statutes of the state of Washington.

(2) The town may levy civil penalties against any person, party, firm, corporation, or other legal entity for violation of any of the provisions of this chapter. The civil penalty shall be assessed at a maximum rate of $500.00 per day per violation. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 8.01.03, 1998)

16.15.700 Administrative procedures.

The administrative procedures followed during the critical area review process shall conform to the standards and requirements of the town of Skykomish development regulations ordinance, SMC Title 19 (consolidated application process). This shall include, but not be limited to, timing, appeals, and fees associated with applications covered by this chapter. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 8.02.01, 1998)

16.15.710 Fees.

The town council by resolution shall establish fees for filing of a critical area checklist, processing of a critical area review, and other services provided by the town as required by this chapter. These fees shall be based on the anticipated sum of direct costs incurred by the town for any individual development or action and may be established as a sliding scale that will recover all of the town’s costs. Basis for these fees shall include, but not be limited to, the following:

(1) Costs of engineering and planning review time.

(2) Costs of inspection time.

(3) Costs of testing completed facilities.

(4) Costs for administration.

(5) Any other special costs attributable to the permitting process. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 8.02.02, 1998)

16.15.720 Severability.

If any provisions of this chapter or its application to any person or circumstance is held invalid, the remainder of this regulation or the application of the provision to other persons or circumstances shall not be affected. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 8.02.03, 1998)

16.15.730 Amendments.

Procedural and substantive amendments to this chapter shall be subject to the provisions contained under the Skykomish consolidated application process, WAC 365-195-070(7) and 365-195-610. (Ord. 466 § 1 (Exh. A), 2019; Ord. 362 § 2, 2005; Ord. 269 § 8.02.04, 1998)